UAox. 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

John  Hogan 


The  Law  of 
Architecture   and   Building 


A  CONSIDERATION  OF  THE  MUTUAL  RIGHTS 

DUTIES  AND  LIABILITIES  OF  ARCHITECT 

OWNER  AND  CONTRACTOR,  WITH 

APPENDICES  AND  FORMS. 


BY 

CLINTON  H.  BLAKE,  JR.,  A.B.,  A.M.,  LL.B. 

of  the  Nenu  York  and  Federal  Ears 


WITH  A  SPECIAL  INTRODUCTION  BY 

AYMAR  EMBURY  II 

Member 
American  Institute  of  Architects 


NEW  YORK 
THE  WILLIAM  T.  COMSTOCK  CO. 


T 


Copyright,  1916 
BY  CLINTON  H.  BLAKE,  JR 


VAIL-BALLOU     COMPANY 


To 
M.   C.   B. 


SPECIAL  INTRODUCTION 
BY  AYMAR  EMBURY  II., 

(Member  American  Institute  of  Architects.) 

Architects  as  a  class  are  indisputably  earnest 
and  careful  in  their  work,  but  very  properly  de- 
vote the  most  part  of  their  attention  to  construc- 
tion and  design.  The  business  end  is  to  most  of 
us  incidental,  and  while  we  try  to  keep  our  ac- 
counts straight  and  our  contracts  in  form,  our 
legal  rights  and  obligations  and  the  legal  rights 
and  obligations  of  our  clients  and  contractors  re- 
ceive far  less  consideration  at  our  hands  than  they 
should. 

Because  of  the  attention  which  we  pay  to  the 
construction,  we  do  not  very  often  erect  unsafe 
buildings,  but  our  handling  of  the  legal  and  busi- 
ness end  of  our  work  has  not  been  commensu- 
rately  good.  If  we  do  not  have  more  trouble  with 
our  contractors,  our  owners  or  our  Building  De- 
partments, it  is  because  of  their  complacence,  and 
not  because  of  our  understanding  of  sound  legal 
and  business  principles. 

Conscious  violations  of  the  building  law  by 
architects  are  not  frequent,  yet  they  are  by  no 
means  uncommon,  and  are  often  forced  by  the 
poorly  written  and  untechnical  statutes  of  many 
of  our  States.  In  my  home  town  for  example, 


vi  SPECIAL  INTRODUCTION 

the  building  code  for  many  years  provided  that 
all  cement  mortar  should  be  mixed  with  long  cat- 
tle hair:  of  course  that  particular  section  of  the 
ordinance  was  violated  as  often  as  there  was  a 
building  erected  in  the  town,  and  yet  what  else 
could  be  done  ? 

However,  ignorance  of  the  building  code  does 
not  as  a  rule  bring  as  serious  consequences  upon 
the  head  of  the  architect  as  does  ignorance  of  the 
rather  unusual  quasi-judicial  position  which  he 
occupies,  and  that  more  architects  do  not  get  into 
very  serious  trouble  is  probably  more  due  to  the 
complacence  of  their  clients,  than  to  the  correct- 
ness of  the  positions  assumed  by  the  architects. 
As  a  matter  of  fact  this  book  came  to  be  written 
because  Mr.  Blake,  acting  as  my  attorney,  discov- 
ered that  I  had  very  curious  and  false  notions  of 
my  duties  and  responsibilities,  and  finding  that 
the  clients  for  whom  I  worked,  had  other  views 
equally  curious  and  untenable,  the  idea  naturally 
suggested  itself  that  brief  and  authoritative  state- 
ments of  the  law  in  its  relation  to  architect  and 
client  alike,  would  be  valuable. 

Another  thing  which  makes  such  a  hand  book 
almost  a  necessity  is  that  a  copy  of  the  laws  would 
not  help  much,  even  if  one  took  the  time  and  trou- 
ble to  wade  through  a  young  library  of  "Acts" 
to  find  the  ones  which  concern  building  and  build- 
ing contracts.  The  law  is  made  as  much  by  the 
interpretations  placed  upon  it  by  various  judges, 
as  by  its  letter;  and  the  judicial  precedents  and 
interpretations  established  in  the  different  juris- 


SPECIAL  INTRODUCTION  vii 

dictions  are  of  vastly  more  importance  than  the 
mere  texts  of  the  statutes  alone. 

Of  course  I  am  writing  from  the  standpoint  of 
the  layman,  and  without  much  real  knowledge  of 
the  abstruse  workings  of  the  legal  mind ;  but  that 
is  the  way  it  seems  to  me.  Therefore  I  wish  to 
find  out  just  what  I  ought  to  do  to  protect  myself 
from  my  client  and  to  protect  my  client  from  my 
builder.  In  case  of  trouble  I  must  go  to  a  lawyer, 
unless  from  previous  cases  of  similar  kind  I  have 
gathered  a  knowledge  of  the  proper  steps  to  take ; 
it  is  certain  that  I  will  not  go  to  a  lawyer  until  I 
find  myself  in  trouble,  and  then  I  may  find  that 
I  have  done  all  sorts  of  things  which  I  ought  not 
to  have  done,  and  left  undone  those  things  which 
I  ought  to  have  done,  and  there  is  no  health  in 
my  case.  Yet  a  little  care  and  foresight  and 
especially  a  little  knowledge  would  have  kept  me 
from  doing  things  (to  a  lawyer)  obviously  fool- 
ish and  even  criminal. 

Most  architects  do  not  at  all  know  how  much 
authority  is  conferred  upon  them,  and  most  cli- 
ents do  not  know  either,  so  that,  depending  upon 
the  temperament  of  the  architect  and  of  the 
owner,  in  some  jobs  the  architect  becomes  a  mere 
servant,  who  has  to  carry  out  the  owner's  man- 
dates without  regard  to  contractual  limitations, 
while  in  other  jobs  the  architect  becomes  a  sort 
of  petty  dictator,  whose  statements  are  accepted 
by  the  owner  and  the  builder  as  final  and  binding. 

This  condition  of  affairs  exists — and  can  only 
continue  to  exist — because  of  the  very  complete 


viii  SPECIAL  INTRODUCTION 

ignorance  on  the  part  of  the  owner  and  of  the 
architect  as  to  the  exact  status  of  their  relations. 
Most  of  us  perhaps  are  willing  to  usurp  authority 
if  we  think  no  ill  will  follow,  but  most  of  us  also 
would  be  very  careful  if  we  knew  that  such 
usurpation  might  have  the  most  unpleasant 
financial  consequences.  The  architect  can  afford 
neither  to  be  the  tool  nor  the  boss  of  his  client, 
and  he  should  be  able  to  proceed  with  his  work 
with  fairness  to  the  owner  and  to  the  builder,  and 
without  fear  that  in  the  exercise  of  his  authority, 
he  may  become  liable  to  discharge  without  com- 
pensation. 

I  think  most  architects  have  more  trouble  with 
clients  than  they  do  with  builders.  This  is  per- 
haps only  natural,  since  builders  are  in  the  busi- 
ness all  the  time  and  know  the  ropes,  at  least  in 
a  general  sort  of  way,  while  a  very  great  majority 
of  owners  are  building  for  the  first  and  only  time, 
and  have  very  little  knowledge  of  what  they  are 
undertaking  when  they  sign  a  contract,  or  even 
when  they  ask  an  architect  for  sketches. 

The  question  of  the  architect's  liability  is  some- 
thing that  most  architects  do  not  understand  at 
all.  I  was  very  greatly  surprised  to  learn  that 
I  had  no  authority  to  alter  the  definite  letter  of 
the  specifications  or  allow  any  departure  from  the 
terms  of  the  contract  without  the  consent  of  the 
owner.  Prior  to  the  receipt  of  this  information 
I  had  probably  never  constructed  a  building  in 
which  the  specifications  were  literally  adhered  to, 
and  it  is  also  possible  that  I  have  not  constructed 


SPECIAL  INTRODUCTION  ix 

one  since;  but  at  least  I  have  been  careful  to  see 
that  I  permitted  no  changes,  without  the  owner's 
consent,  which  would  cost  any  very  great  amount 
to  alter  back  to  conform  with  the  original  speci- 
fications. 

Probably  most  architects  do  permit  minor 
changes  which  result  in  the  betterment  of  the  job, 
or  which  make  things  easier  for  the  contractor 
without  detriment  to  the  job,  and  for  which  there 
is  no  extra  asked  or  expected.  Architects  are  ac- 
customed to  use  their  own  judgment  in  making 
these  changes,  and  most  clients  are  willing  to 
accept  the  architect's  judgment  on  such  points. 
However  when  a  careful  client,  over  zealous  for 
his  own  interest,  discovers  that  such  a  change  has 
been  made,  over  his  head,  as  he  thinks,  he  is  apt 
to  place  the  worst  possible  construction  upon  it. 
He  can  if  he  likes,  insist  upon  work  being  done 
in  exact  accordance  with  the  original  contract 
and  it  may  cost  the  architect  a  lot  of  money  to 
do  it. 

I  remember  in  one  of  my  own  jobs,  I  had  speci- 
fied that  nothing  but  galvanized  nails  should  be 
used  in  the  exterior  trim ;  in  some  way  the  clause 
slipped  by  the  contractor  (I  do  not  think  there 
was  any  ill  intention  on  his  part)  and  a  very  con- 
siderable portion  of  the  exterior  trim  was  applied 
to  the  house,  between  inspection  visits,  with  ordi- 
nary nails.  To  remove  these  nails  would  have 
destroyed  the  trim,  and  would  have  resulted  in 
the  loss  to  the  contractor  of  a  very  considerable 
sum.  Furthermore  it  would  have  taken  from 


x  SPECIAL  INTRODUCTION 

four  to  six  weeks  to  secure  new  trim,  and  have 
delayed  the  job  sufficiently  to  mean  extreme  dis- 
comfort to  the  owner.  I  did  what  I  thought  fair 
and  best;  had  the  nail  heads  well  set  in  and  put- 
tied at  once,  and  galvanized  nails  added  in  suffi- 
cient number  to  hold  the  trim.  I  am  informed 
that  by  this  act  I  assumed  a  rather  grave  respon- 
sibility, yet  I  hardly  see  that  any  other  action 
would  have  been  beneficial  to  the  job.  I  know 
now  that  I  should  have  secured  the  prior  consent 
of  my  client  in  order  to  clear  myself  of  any  pos- 
sible financial  responsibility. 

It  is  cases  like  this  that  have  made  me  ex- 
tremely glad  to  have  this  book  of  Mr.  Blake's  to 
read  over.  In  the  first  place  I  am  going  to  fix 
the  general  principles  of  the  law  in  its  relation  to 
the  architect,  builder  and  owner,  firmly  in  mind, 
and  in  the  second  place  by  use  of  the  index  I  can 
discover  what  I  should  do  in  any  particular  case 
where  there  is  a  possibility  of  trouble  arising. 
Of  course  in  a  case  of  actual  trouble,  I  shall  still 
go  at  once  to  my  lawyer,  but  I  shall  be  able  to  go 
with  my  record  absolutely  clear,  and  with  the  cer- 
tainty that  both  the  law  and  its  interpretation  will 
be  on  my  side. 

AYMAR  EMBURY  II. 

New  York  City,  October,  1915. 


AUTHOR'S  PREFACE 

During  the  years  1913-14  I  contributed  to 
Architecture  a  series  of  articles  the  purpose  of 
which  was  to  define  and  set  forth,  in  compara- 
tively simple  and  yet  practical  form,  the  respective 
rights,  duties,  and  liabilities,  of  architect,  owner, 
and  contractor. 

The  request  for  the  preparation  of  these  articles 
was  born  of  the  realization  by  the  publishers  of 
Architecture  of  the  fact  that,  among  architects 
especially,  the  legal  rights  and  liabilities  affecting 
the  architectural  profession  were,  in  general, 
neither  appreciated  nor  understood,  and  of  the 
desire  to  place  before  them  a  statement  of  the 
basic  rules  of  law  governing  and  affecting  the 
practice  of  their  profession,  in  a  form  which 
would  be  at  once  sufficiently  free  from  special 
legal  phraseology  to  be  understood  by  a  layman, 
and  at  the  same  time  sufficiently  comprehensive 
and  detailed  in  the  citation  of  cases  to  enable  the 
reader  to  refer  to  the  leading  cases  if  desired. 

The  desire  which  has  been  expressed  that  the 
articles  contributed  to  Architecture  be  published 
in  a  fuller  and  more  detailed  form,  and  in  a  form 
available  for  general  reference  and  office  use,  is 
the  raison  d'etre  of  the  present  volume.  The  text 
has  been  enlarged  and  revised  and  additional  cita- 


xii  AUTHOR'S  PREFACE 

tions  of  recent  decisions  added.  There  has  been 
added,  also,  a  table  of  cited  cases  and  a  number  of 
special  appendices  and  forms. 

My  endeavor,  in  general,  has  been  twofold: 
First,  to  provide  a  text  which  will  enable  the  archi- 
tect, owner,  or  contractor,  to  understand  or  read- 
ily ascertain  his  respective  duties  and  liabilities, 
and  the  elementary  and  general  legal  rules  which 
govern  them;  second,  to  make  the  discussion  of 
the  various  points  treated  sufficiently  detailed  and 
technical  so  that  it  may  be  of  aid  to  the  legal,  as 
well  as  to  the  architectural,  profession.  For  this 
reason,  especially,  the  citation  of  authorities  has 
been  made  as  thorough  and  as  comprehensive  as 
possible. 

There  will  be  found  collected,  in  considerable 
number  and  detail,  citations  of  authorities  cover- 
ing the  various  matters  referred  to,  and  illustra- 
tive of  the  manner  in  which  they  have  been 
treated  and  passed  upon  by  the  courts  of  the  sev- 
eral States  and  especially  by  the  courts  of  New 
York,  by  the  Federal  courts,  and  by  the  courts  of 
other  countries.  The  cases  cited  have  been  per- 
sonally checked  and  verified  and  an  earnest  en- 
deavor made  to  insure  their  accuracy,  both  in  cita- 
tion and  in  application. 

There  are  certain  broad  and  many  less  broad 
but  none  the  less  vital  principles,  governing  the 
rights,  duties  and  liabilities,  of  architect,  owner, 
and  contractor,  which  it  is  essential  they  should 
understand,  if  they  are  to  be  able  to  deal  with  one 
another  with  a  minimum  amount  of  legal  contro- 


AUTHOR'S  PREFACE  xiii 

versy,  and  with  a  proper  and  desirable  degree  of 
mutual  understanding  and  satisfaction.  The 
general  right  of  the  architect  to  compensation, 
the  ownership  of  plans,  the  right  to  charge  for 
preliminary  sketches  and  preliminary  work,  the 
respective  rights  of  the  parties  under  the  lien 
laws  of  the  various  States,  the  ever  troublesome 
questions  of  estimated  cost,  extras,  alterations  in 
plans  and  superintendence — all  of  these  are  mat- 
ters which,  to  one  acquainted  with  the  broad  gen- 
eral legal  principles  by  which  they  are  governed, 
will  present  no  great  amount  of  difficulty  but,  to 
another  not  so  warned  and  forearmed,  will  pre- 
sent almost  innumerable  opportunities  for  serious 
financial  loss,  unnecessary  and  expensive  litiga- 
tion, misunderstandings  with  clients,  architects, 
or  contractors,  as  the  case  may  be,  and  a  very  con- 
siderable amount  of  entirely  unnecessary  worry 
and  difficulty. 

Part  I  of  the  text  deals  with  the  relationship 
and  the  mutual  rights  and  liabilities  of  the  archi- 
tect and  the  owner. 

Part  II  deals  with  the  relationship  and  the 
mutual  rights  and  liabilities  of  the  owner  and 
the  contractor. 

Part  III  deals  with  the  matter  of  liens,  includ- 
ing the  lien  rights  of  the  architect,  of  the  con- 
tractor, and  of  the  subcontractor. 

Part  IV  deals  with  the  relationship  and  rights 
and  liabilities  of  the  architect  and  the  builder,  so 
far  as  they  are  not  necessarily  referred  to  and  dis- 
cussed under  the  prior  headings,  and  contains  a 


xiv  AUTHOR'S  PREFACE 

general  summary  of  the  more  important  points  in 
the  text,  from  the  point  of  view,  especially,  of  the 
architect,  together  with  general  suggestions  based 
thereon. 

The  Appendices  contain  a  number  of  selected 
decisions  in  leading  cases  for  general  reference 
reading  supplemental  to  the  text,  the  new  Stand- 
ard Documents,  Forms,  Canons  of  Ethics,  and 
Schedule  of  Minimum  Charges  of  the  American 
Institute  of  Architects,  and  the  Schedule  of 
Charges  of  Architects,  as  approved  by  the  New 
York  Chapter  of  the  American  Institute. 

The  special  forms  which  follow  Appendix  E 
are  adapted  from  forms  used  in  actual  court 
proceedings.  They  include  a  number  of  the  more 
useful  and  more  generally  needed  forms  in  lien 
actions.  It  has  been  thought  unnecessary  to  en- 
cumber the  text  with  all  the  forms  required  from 
time  to  time  in  such  proceedings,  in  view  of  the 
many  excellent  forms  already  published,  and  the 
fact  that  it  is  not  the  purpose  of  the  present  text 
to  deal  exhaustively  with  the  subject  of  liens,  but 
rather  to  emphasize  those  points  therein  which  are 
especially  applicable  to  the  mutual  relations  of  the 
architect,  the  owner,  and  the  contractor. 

For  special  or  more  detailed  investigation  as  to 
any  particular  point  in  the  text,  reference  may  be 
had  to  the  special  authorities  dealing  with  that 
point  alone,  as  distinguished  from  the  general 
subjects  which  it  is  the  purpose  of  the  present 
pages  to  discuss. 

I  wish  to  acknowledge  my  indebtedness  in  gen- 


AUTHOR'S  PREFACE  xv 

ft 

eral  to  all  of  the  standard  legal  digests  and  en- 
cyclopedias, and  to  the  various  authors  to  whom 
I  have  endeavored  to  give  full  credit  in  the  refer- 
ence notes.  I  must  acknowledge,  especially,  the 
courtesy  of  The  American  Institute  of  Architects, 
in  granting  to  me  permission  to  publish  the  Stand- 
ard Documents,  Forms,  Canons  of  Ethics  and 
Schedule  of  Minimum  Charges  issued  by  the  In- 
stitute and  which  comprise  Appendix  B.  A  simi- 
lar acknowledgment  is  due  the  New  York  Chapter 
of  the  American  Institute  for  the  permission 
granted  to  publish  its  Schedule  of  Minimum 
Charges. 

If  the  following  pages  prove  helpful  in  any  way 
to  my  many  good  friends  in  the  Architectural  pro- 
fession or  to  my  fellow-members  of  the  Bar,  I 
shall  feel  amply  repaid  for  the  time  and  effort 
given  to  their  preparation. 

CLINTON  H.  BLAKE,  JR. 

New  York  City,  October  i5th,  1915. 


TABLE  OF  CONTENTS. 

PART  I. 
THE  ARCHITECT  AND  THE  OWNER. 

CHAPTER  I. 

THE  RELATIONSHIP  IN  GENERAL. 
[References  are  to  Pages.} 

§  i.     Similar  to  Other  Professional  Relationships 3 

§  2.    Exceptions  to  Rule 3 

§  3.    Absolute  Good  Faith  Required 5 

§  4.  Architect  to  Have  No  Concealed  or  Conflicting  In- 
terest in  Contract 6 

§  5.    Limitation  of  Rule — Estoppel  of  Owner 9 

§  6.    Assumption  of  Good  Faith 10 

CHAPTER  II. 
THE  ARCHITECT  AS  AGENT  OF  THE  OWNER. 

§    7.  Importance  of  Agency  Relationship 12 

5    8.  Agency,  Express  and  Implied 12 

§    9.  Extras  13 

§  10.  Illustrations  of  Rule 18 

§  ii.  Other  Limitations  on  General  Agency 23 

§  12.  Special  Agency — To  be  Carefully  Exercised 25 

§  13.  Estoppel  of  Owner 26 

§  14.  Delegation  of  Powers— The  General  Rule 27 

§  15.  Limitation  of  Rule 28 

§  16.  Due  Care  Required  in  Delegation  of  Authority 30 

§  17.  Power  to  Act  in  Emergencies 31 

§  18.  Dangers  of  Implied  Authority 32 

§19.  General  Precautionary  Suggestions 33 

xvii 


xviii  TABLE  OF  CONTENTS  [Reference* 

are  to 
Pages.} 

CHAPTER  III. 

THE  COMPENSATION  OF  THE  ARCHITECT. 

§  20.    Introductory 36 

§  21.    Theory  of  Recovery — Contract  and  Quantum  Meruit  37 
§  22.    Recovery  in  Absence  of  Special  Conditions  or  Agree- 
ment     39 

§  23.    Effect  of  Specified  Conditions . 40 

§  24.    Conditions  Re  Cost 40 

§  25.    Limitation  of  Rule 42 

§  26.    Necessity  of  Delivery 44 

§  27.    Delivery  and  Acceptance  Distinguished. 46 

§  28.    Necessity  of  Actual  Contract — Custom  Alone  Insuffi- 
cient to  Sustain  Recovery 47 

§  29.    Illustration  of  Rule 48 

§  30.    Competitions   52 

§31.    Proper  Care  and  Skill  Required 53 

§  32.    Modification  of  Contract 54 

§  33.    Rescission     of     Contract     by     Owner — Preliminary 

Sketches   55 

§34.    Illustration  of  General  Rule 56 

§  35-    Cannot  Compel  Client  to  Complete 57 

§  36.    Measure  of  Damages  on  Refusal  to  Complete 58 

§  37.    Basis  of  Computation  of  Value  of  Services 58 

§  38.    General    Suggestions 61 

CHAPTER  IV. 

DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT. 

§  39.    In  General 67 

§  40.    Plans  and  Specifications 69 

§41.    Mistakes 69 

§  42.    Negligence — Measure  of  Damages 69 

§  43.    Limitation  of  Rule — Architect  not  Liable  if  Plans  Not 

Adhered  To 70 

§  44.    Burden  of  Proof — Illustrations  of  Rule 70 

§  45.    Repairs  and  Superintendence 74 

§  46.    Reasonable    Care    and    Diligence    Required — Illustra- 
tions  of   Rule 75 

§  47.    Negligence  a  Question  of  Fact 86 

§48.    Burden  of  Proof 86 

§  49.    Architect  as  Arbitrator 86 

§  50.    Certificates 87 


XIX 


CHAPTER  V. 
DEATH  OF  ARCHITECT  AND  OWNERSHIP  OF  PLANS. 

§51.    Death  of  Architect 89 

§  52.    Ownership  of  Plans 90 

PART  II. 
THE  OWNER  AND  THE  CONTRACTOR. 

CHAPTER  I. 

IN  GENERAL. 

§  53.  Introductory    95 

§  54.  Compensation    of    Builder — Extras    and    Modification 

of    Contract 95 

§  55.  The  Architect's  Certificate 101 

§  56.  Damages  107 

§  57.  Right  to  Plans 109 

§  58.  Liability  of  Contractor  for  Work  of  Subcontractor. ...  no 

§  59.  Recoupment  from  Subcontractor no 

§  60.  Time  of  Payment in 

§  6l.  Substantial    Performance in 

CHAPTER  II. 
REQUISITES  OF  CONSTRUCTION  CONTRACT. 

§  62.    In  General 113 

§  63.    Importance  of  Statutory  Provisions 117 

§  64.    Void  and  Illegal  Contracts 117 

CHAPTER  III. 
TERMS  AND  OPERATION  OF  BUILDING  CONTRACT. 

§  65.  The  Architect  as  Arbitrator 119 

§  66.  Limitation  of  Rule 120 

§  67.  Extras  122 

§  68.  Right  of  Owner  to  Complete 124 

§  69.  Suspension  of  Work  by  Mutual  Consent 125 


XX  TABLE  OF  CONTENTS  [References 

are  to 
Pages.] 

§  70.    Liquidated  Damages 125 

§  71.    Contract  Not  to  Usurp  Jurisdiction  of  the  Courts 130 


CHAPTER  IV. 

"THE  STANDARD  DOCUMENTS." 
§  72.    In  General 133 

PART  III. 
LIENS. 

CHAPTER  I. 
IN  GENERAL. 

§  73.  Definition   139 

§  74.  History  of  Lien  Legislation 140 

§  75.  Early  Conception  and  Development  of  Doctrine 141 

§  76.  Constitutionality 142 

§  77.  Lien  a  Statutory  Remedy 143 

§  78.  No  Personal  Liability 144 

§  79.  Necessity  of  Contract 144 

CHAPTER  II. 
THE  LIEN  OF  THE  ARCHITECT. 

§  80.    Development  of  Doctrine 147 

§  81.    Importance  of  Superintendence 148 

§  82.    The  New  York  Doctrine 150 

§  83.    The  Massachusetts  Doctrine 15.1 

§84.    The  Doctrines  Contrasted — Discussion 154 

§  85.    Reference  to  Particular  Statute  Essential 155 

§  86.    Lien  by  Contract 155 

§  87.    Lighting  Fixtures 156 

§  88.    Consent  of  Owner 157 

CHAPTER  III. 
THE  LIEN  OF  THE  CONTRACTOR. 

§  89.    Classes  of  Lienors 160 

§  90.    Various  Statutory  Provisions 162 


TABLE  OF  CONTENTS  xxi 

§  91.  Performance  Must  Be  Proven 162 

§  92.  Substantial  Performance  Sufficient — Statement  of  the 

Rule  163 

§  93.  Effect  of  Delay 164 

§  94.  Limitation  of  Rule 164 

§  95.  Necessity  of  Architect's  Approval 164 

§  96.  Municipal  Contract — Approval  by  City  Department  as 

Condition  Precedent 165 

§  97.  Collusion— Effect  166 

§  98.  Waiver  of  Condition  by  Owner 166 

§  99.  Certificate  as  Evidence  of  Performance 166 

§100.  Corporations  as  Lienors 167 

§101.  Effect  of  Fire 167 

§102.  Change  in  Ownership 168 

§103.  Death  of  Owner 168 

§104.  General  Assignment 168 

§105.  Consent  of  the  Owner 168 


CHAPTER  IV. 
THE  LIEN  OF  THE  SUBCONTRACTOR. 

§106.    Nature  of  Lien 170 

§107.    The  Pennsylvania  Doctrine 170 

§108.    The  New  York  Doctrine 170 

§109.    Failure  of  Contractor  to  Complete 172 

§110.    Rights  of  Subcontractor  as  Affected  by  Contract 173 

§111.    Employees  and  Material  Men  of  Subcontractor 174 

§112.  Necessity  and  Effect  of  Filing  or  Recording  of  Con- 
tract      175 

§113.     Priority  of  Claims 177 

PART  IV. 

THE  ARCHITECT  AND  THE  CONTRACTOR- 
CONCLUSION. 

CHAPTER  I. 
THE  ARCHITECT  AND  THE  CONTRACTOR. 

§114.    Rights  and  Liabilities  in  General 181 

§115.    Right  to  Plans 182 


XXli  TABLE  OF  CONTENTS  [Reference, 

are  to 
Pages.} 

CHAPTER  II. 
CONCLUSION. 

§i  16.     Summary  and  Final  Suggestions 183 

Appendix  A 191-221 

Appendix  B  221-256 

Appendix  C 257-259 

Appendix  D 260-267 

Appendix  E    268-270 

Forms 271-294 

General  Index  295-314 

Index  to  Forms  314 


TABLE  OF  CASES 

A. 

[References  are  to  Pages.] 

Ada  St.  Methodist  Episcopal  Church  v.  Garnsey,  66  111.  132. .  42 

Adlard  v.  Muldoon,  45  111.  193 17,  18 

Ahern  v.  Boyce,  19  Mo.  App.  552 13,  24 

Aimes  v.  Dyer,  41  Me.  397 150 

Aitken  v.  Wasson,  24  N.  Y.  482 150 

Allen  v.  Bowman,  7  Mo.  App.  29 46,  47 

Andrew  Lohr  Bottling  Co.  v.  Ferguson,  223;  111.  88,  79  N.  E.  35  106 

Arnoldi  v.  Gouin,  22  Grant's  Chan.  (Ontario)  314 149 

Atlantic,  etc.,  Co.  v.  Donnelly,  59  N.  J.  L.  48 173 

Atlee  v.  Fink,  75  Mo.  100,  42  Am.  Rep.  385 7 

Audsley  v.  The  Mayor,  74  Federal  274 46 

Ayres  v.  Revere,  25  N.  J.  L.  474 176 

B. 

Badger  v.  Kerber,  61  111.  328 5 

Baird  v.  New  York,  96  N.  Y.  567 108 

Baker  v.  Publishing  Co.  (Missouri  1903),  77  S.  W.  585 55 

Ballon  v.  Black,  21  Neb.  131 170 

Baltimore  Cemetery  v.  Coburn,  7  Maryland  202 18 

Bank  of  Montreal  v.  Recknagel,  109  N.  Y.  482 73 

Bank  of  Penn.  v.  Gries,  35  Pa.  St.  423 149,  150 

Bannister  v.  Patty's  Exec's.,  35  Wis.  215 28 

Barbee  v.  Findlay,  221  111.  251,  77  N.  E.  590 106 

Barlow  Bros.  Co.  v.  Gaffney,  76  Conn.  107 174 

Barry  v.  Cape,  151  Mass.  99 1 18 

Bartlett  v.  Stanchfield,  148  Mass.  394 124 

Baywater  v.  Richardson,  i  A.  D.  &  E.  508 50 

Beckhart  v.  Rudolph,  68  N.  J.  Eq.  740,  68  N.  J.  Eq.  315 160 

Belding  v.  Gushing,  i  Gray  (Mass.)  576 145 

Benner  v.  Schmidt,  44  111.  App.  304 164 

Bennett  v.  Davis,  113  Cal.  337 161 

Berger  v.  Turnblad,  98  Minn.  163 170 

Bergfors  v.  Caron,  190  Mass.  168 163 

Birmingham  Iron  Foundry  v.  Glen  Cove  Starch  Manfg.  Co., 

78  N.  Y.  30 141,  143 

xxiii 


xxiv  TABLE  OF  CASES  [References 

are  to 
Pages.] 

Blauvelt  v.  Woodworth,  31  N.  Y.  285 143 

Blinn  Lumber  Co.  v.  Walker,  129  Cal.  62 175 

Bliven  v.  New  England  Screw  Co.  23  How.  420 50 

Bloomington  Hotel  Co.  v.  Garthwait,  227  111.  613 164 

Boden  v.  Maher,  105  Wis.  539 28 

Bohem  v.  Seabury,  141  Pa.  St.  594 163 

Bonagur  v.  Purificato,  146  N.  Y.  Supp.  1070 112 

Bond  v.  The  Mayor,  etc.,  19  N.  J.  Eq.  376 18,  24 

Bonestael  v.  The  Mayor,  etc.,  of  N.  Y.,  22  N.  Y.  162 24 

Bonncy  v.  Ketcham,  51  111.  App.  321 144 

Booth  v.  Pendala,  88  Cal.  36 143 

Borup  v.  Von  Kokeritz,  162  N.  Y.  A.  D.  394 103,  105 

Bouton  v.  Supervisors  of  McDonough  County,  84  111.  384. .  23,  24 

Bowery  National  Bank  v.  The  Mayor,  63  N.  Y.  336 102 

Brainard  v.  County  of  Kings,  84  Hun.  N.  Y.  290,  155  N.  Y. 

538 125,  172,  174 

Brandt  v.  City  of  New  York,  no  N.  Y.  A.  D.  396,  186  N.  Y. 

599  163 

Brin  v.  McGregor  (Tex.  Civ.  App.  1898)  45  S.  W.  923 27 

Brooks  v.  Railway  Co.,  101  U.  S.  443 143 

Brown  v.  Decker,  142  Pa.  State  640 119 

Bryan  v.  Whitford,  66  111.  33 162 

Brydon  v.  Lutes,  9  Manitoba  463 163 

Buckingham  v.  Flummerfelt,  15  N.  Dak.  112 151 

Budd  v.  Lucky,  28  N.  J.  L.  484 176 

Burger  v.  Koelsch,  77  Hun.  (N.  Y.)  44 115 

Burke  v.  City  of  Kansas,  34  Mo.  App  570 24 

v.  Coyne,  188  Mass.  401 163 

Bush  v.  Jones  (C.  C.  A.),  144  Fed.  942 106 

Butler  v.  Flynn,  51  N.  Y.  A.  D.  225 159 

Byard  v.  Holmes,  33  N.  J.  L.  119 108 


C. 

Cairo,  etc.,  Co.  v.  Watson,  85  111.  531 174 

Campbell  v.  Day,  90  111.  363 18,  23 

Canfield  (New  England  Monument  Co.)  v.  Johnson,  et  al., 

144  Pa.  St.  61,  22  Atl.  974 40,  46 

Carlisle  v.  Knapp,  51  N.  J.  L.  329 174 

Carnegie  Public  Lib.  Assoc.  v.  Harris  (Tex.  Civ.  App.  May 

9th,  1906)  97  S.  W.  520 106 

Carney  Bros.  v.  Cook,  80  Iowa  747 146 

Cass  County  v.  Gibson,  107  Fed.  363 107 


TABLE  OF  CASES  xxv 

Central  Trust  Co.  v.  Richmond,  etc.,  Co.  68  Fed.  90 170 

v.  Richmond,  etc.,  Co.  54  Fed.  723 174 

Champlain  Construction  Co.  v.  O'Brien,  117  Federal  271 113 

Chapman  v.  Faith,  18  Pa.  Super.  Ct.  578 161 

Chapman   Decorative   Co.,   v.   Security,   etc.,   Co.,    145    Fed. 

434,  149  Fed.  189 126 

Chicago,  etc.,  Co.  v.  Price,  138  U.  S.  185 121 

Clark  v.  Fry,  121  N.  Y.  470 73 

v.  Marsiglia,  i  Denio  (N.  Y.)   317 58 

Clarke  v.  Roystone,  13  M.  &  W.  752 50 

Cleveland,  etc.,  Railroad  Co.  v.  Moore,  170  Ind.  328 116 

Cobb  v.  Hatfield,  46  N.  Y.  533 108 

Coburn  v.  Stephens,  137  Ind.  683 145 

Cockerill  v.  Loonam,  36  Hun.  (N.  Y.)  353 141 

Coddington  v.  Dry  Dock  Co.,  98  Ala.  409 167 

Coen  v.  Birchard,  124  Iowa  394 128 

Coffin  v.  Reynolds,  37  N.  Y.  640 150 

Cole  v.  Clarke,  85  Me.  336 145 

Commune  de  Calombier  Saugnieu  v.  Duchez  et  Savoye,  Dalloz 

Jurisprudence  Generate,  1883,  part  3,  p.  92 24 

Condon  v.  Donohue,  160  Cal.  749 1 17 

Conner  v.  Lewis,   16  Me.  268 175 

Conners  v.  United  States,  130  Federal  609 119 

Cook  v.  Rome  Brick  Co.,  98  Ala.  409 167 

Coombs  v.  Beede,  89  Me.  187,  36  Atlantic  104 3,  17,  44,  67,  75 

Cooper  v.  Langdon,  9  M.  &  W.  (Messon  &  Welsby)  60. . .  .18,  24 

Coorsen  v.  Ziehl,  103  Wis.  381 145 

Cornell  v.  Barney,  94  N.  Y.  394 145 

Costello  v.  Dale,  i  Hun.  (N.  Y.)  489 145 

Courtney  v.  Provincial  Commission,  41   Nova  Scotia  71....  119 

Cox  v.  Broderick,  4  E.  D.  Smith  (N.  Y.)  721 144 

Crane  Co.  v.  Hanley,  etc.,  Co.,  53  Mo.  App.  540 170 

Crockett  v.  Chattanhoochen  Brick  Co.  95  Ga.  540 17 

Crystal  v.  Flannelly,  2  E.  D.  Smith  (N.  Y.)  583 144,  168 

Culver  v.  Attwood,  170  111.  432 174 

Cummings  v.  Consolidated,  etc.,  Water  Co.,  61  Atlantic  353. . .  140 

Curnew  v.  Lee,  143  Mass.  105 162 


D. 

Daly  v.  Wise,  132  N.  Y.  306 108 

Danforth  v.  Tennessee,  etc.,  Co.,  93  Alabama  614 124 

Dauchey  v.  Drake,  85  N.  Y.  407 73 

Davis  v.  Alvord,  94  U.  S.  545 143 


xxvi  TABLE  OF  CASES  [References 

are  to 
Pages.] 

David  v.  McDonald,  8  L.  C.  (Lower  Canada)  Jurist  44,  14 

L.  C.  Rep.  31 78,  107 

Day  &  Co.  v.  Pickens  County,  53  South  Carolina,  46 9,     18 

Delafield  v.  Sayre,  31  Vroom  (N.  J.)  449 144 

DeLeon  v.  White,  9  Texas  598 4 

Delray,  etc.,  Co.  v.  Keohone,  132  Mich.  17 173 

Derr  v.  Kearney,  46  Misc.  (N.  Y.)  148 163 

Dersheimer  v.  Maloney,  143  Pa.  St.  532 174 

Diehl  v.  Schmalacker,  26  Misc.  (N.  Y.)  835 102 

Dillon  v.  City  of  Syracuse,  5  Silv.  Supreme  Court  (N.  Y.) 

575,  9  N.  Y.  Supp.  98,  29  N.  Y.  St  Rep.  912 17 

Disken  v.  Herger,  73  N.  Y.  A.  D.  453 115 

Dodge  v.  McDonnell,   14  Wis.  553 17,    18 

Dogue  v.  Levy,  114  La.  21,  37  So.  995 106 

Drew  v.  Mason,  81  111.  498 162 

Dreyer  v.  McCormack  Real  Estate  Co.,  164  App.  Div.  (N.  Y.) 

41    • 125 

Driscoll  v.  Independent  School  District,  61  Iowa  426 40 

Drumheller  v.  American  Surety  Co.,  30  Wash.  530 130 

Duff  v.  Hoffmann,  63  Pa.  St.  192 161,  174 

Dufresne  v.  Prefontaine,  21  Can.  Sup.  Ct.  607 143 

Dull  v.  Bramhall,  49  111.  364 60 

Duplan  Silk  Co.  v.  Spencer,  115  Federal  689 124 

Durkin  v.  City  of  New  York,  49  Misc.  (N.  Y.)  114 114 

Durling  v.  Gould,  83  Me.  134 141 

E. 

Eastern,  etc.,  Metal  Co.  v.  Webb  Granite,  etc.,  Co.,  195  Mass. 

356  115 

Elliott  v.  Missouri,  etc.,  Co.,  74  Federal  707 121 

Elliston  v.  Jackson  Water  Co.,  12  Cal.  542 141 

Embury  v.  42nd  St.  &  Madison  Avenue  Co.,  et  al.,  N.  Y.  L.  J. 

April  i6th,  1915 150,  156 

Emerson  v.  Kneezel,  62  S.  W.  (Tex.  Civ.  App.  Dec.  1900)  551  42 

English  v.  Warren,  65  N.  J.  Eq.  30 176,  177 

Entenman  v.  Anderson,  106  N.  Y.  A.  D.  149 145 

Ericsson  v.  Browne,  38  Barb.  (N.  Y.)  390 149 

Erskine  v.  Johnson,  23  Neb.  265 69 

Ex  parte  Schmidt,  62  Ala.  252 141 

F. 

\Fagan  v.  Boyle,  etc.,  Co.,  65  Texas  324 167 

Farmer  v.  St.  Croix,  etc.,  Co.,  117  Wis.  76 174 


TABLE  OF  CASES  xxvii 

Farrell  v.  Levy,  139  (N.  Y.)  A.  D.  790 119,  120 

Favor  v.  Philbrick,  7  New  Hampshire  326 118 

Fay  v.  Muhlker,  i  Misc.  (N.  Y.)  321 102 

Felgenhauer  v.  Haas,  123  A.  D.  (N.  Y.)  75 163 

Feltham  v.  Sharp,  99  Ga.  260,  25  S.  E.  619 42 

Feltus  v.  Swan,  62  Miss.  415 69 

Field  v.  Lelean,  30  L.  J.  Ex.  168 50 

v.  Consolidated  Water  Co.,  25  R.  I.  319 149 

Filston  Farm  Co.  v.  Henderson  (Md.  Ct.  of  App.  June  27, 

1907)  67  Atl.  228 106 

Fireproof   Building  Co.  v.  First  National  Bank,  54  Super. 

Court  (N.  Y.)  511 17,  23 

First  Natl.  Bank,  etc.  v.  Trigg  Co.,  106  Va.  327 143 

Fitzgerald  v.  Benner,  219  111.  485,  76  N.  E.  709 106 

v.  Moran  et  al.,  141  N.  Y.  419 17,  22 

Fitzhugh  v.  Mason,  2  Cal.  App.  220,  83  Pac.  282 6 

Flaherty  v.  Miner,  123  N.  Y.  382 102 

Flanikin  v.  Pokes,  15  Texas  180 4 

Foley  v.  Algar,  4  E.  D.  Smith  (N.  Y.)  719,  134 145 

Fontano  v.  Robbins,  22  App.  Cas.  (D.  C.)  253 18 

Foshay  v.  Robinson,  16  N.  Y.  Supp.  817,  137  N.  Y.  134.  ..171,  172 

Fox  v.  Rogers,  171  Mass.  546 1 18 

v.  Powers,  65  (N.  Y.)  A.  D.  112 123 

v.  Rucker,  30  Ga.  525 144 

Francis  v.  Heine,  etc.,  Co.,  105  Federal  413,  109  Federal  838. .  115 

Freedman  v.  Sandknop,  53  N.  J.  Eq.  243 176 

Freeman  v.  Gilpin,  i  Phila.  23 142 

v.  Rinaker,   185  111.   172 149 

Frohlich  v.  Klein,  160  Mich.  142 163 

Frost  v.  Ilsley,  54  Me.  345 143 

Friedland  v.  McNeil,  33  Mich.  40 9 

Friedlander  v.  Taintor,  14  N.  D.  (104  N.  W.  527)  393 149 

G. 

Gardner,  etc.,  Co.  v.  N.  Y.  Central,  etc.,  Co.,  72  N.  J.  L.  257. .  174 

Garrison  v.  Borio,  61  N.  J.  Eq.  236,  47  Atl.  1060 144,  174 

Gaskell  v.  Beard,  58  Hun.  (N.  Y.)  101 167 

General  Supply  Co.  v.  Hunn,  126  Ga.  615 145 

Gibson  County  v.  Matherwell  Iron,  etc.,  Co.,  123  Ind.  364. ...  32 
Gilman    v.    Stevens,    54    How.    Pr.    (N.    Y.    Super.    Ct.) 

197    8,60,61,75,79,  86 

Girard  Life  Insurance  Co.  v.  Cooper,  162  U.  S.  529 115 

Glacius  v.  Black,  50  N.  Y.  145 17,  24,  164 

v.  Black,  67  N.  Y.  563 143 


XXViii  TABLE  OF  CASES  [References 

are  to 
Pages.} 

Glading  v.  Frick,  88  Pa.  St.  460 176 

Glaholm  v.  Hays,  2  M.  &  G.  265 73 

Gordon  v.  Torrey,  15  N.  J.  Eq.  112 168 

Graham  v.  The  Commissioner  of  Works,  Builder,  Nov.  15, 

1902,  p.  456 30 

Gray  v.  La  Societe  Francaise,  etc.,  131  California  566 18 

Green  v.  Williams,  92  Tenn  220 170 

v.  Brooks,  81  Cal.  328,  22  Pac.  Rep.  849 4 

Grave  v.  Ganer,  36  Wisconsin  369 1 14 

Gurney  v.  Atlantic,  etc.,  Co.,  58  N.  Y.  358 149 


H. 

Haines  v.  Holland  (1898  Tenn.  Ch.  App.)  48  S.  W.  400 162 

Hall  v.  Wright,  06  E.  C.  L.  746 89 

Halsey  v.  Waukesha  Springs  Sanitarium  Co.,  125  Wis.  311, 

104  N.  W.  94 107 

Hammond  v.  Darlington,  84  S.  W.  (Missouri,  1904)  446 140 

Handy  v.  Bliss,  204  Mass.  513 1 19 

Harbeck  v.  Southwell,  18  Wis.  418 174 

Harlan  v.  Rand,  27  Pa.  St.  511 174 

Harmer  v.  Cornelius,  5  C.  B.  (N.  S.)  236 67 

Hart  v.  Globe  Iron  Works,  37  Ohio  St.  75 168 

Hartley  v.  Murtha,  5  N.  Y.  A.  D.  408 166 

Hatch  v.  Fansher,  16  R.  I.  459 170 

Havens  v.  Donahue,  43  Pac.  Rep.  (Oal.  Supreme  Court  1896) 

962  4 

Hayne  v.  Gray,  125  Cal.  372 10 

Hayes  v.  Wagner,  113  Illinois  Appeals  299 116 

Hazard,  etc.,  Co.  v.  Loomis,  2  Disney  (Ohio)  544 146 

Heamann  v.  Porter,  35  Mo.  137 141 

Hedden  Const.  Co.  v.  Proctor,  etc.,  Co.,  62  Misc  (N.  Y.)  129. .  178 

v.  Rossiter,  etc.,  Co.  136  N.  Y.  A,  D.  601 124 

Heidlinger  v.  Onward  Const.  Co.,  44  Misc.  (N.  Y.)  555,  90 

N.  Y.  Supp.  (124  N.  Y.  St.  Rep.)  115 106 

Hemming  v.  Hale  et  al.,  7  C.  B.  N.  S.  (Common  Bench,  New 

Series)  487 29 

Henry,  etc.,  Co.  v.  Halter,  58  Neb.  685 149 

Hebert  v.  Dewey,  191  Mass.  403,  77  N.  E.  822 106 

Herell  v.  Donovan,  7  App.  Cases  (D.  C.)  322 145 

Herman  et.  al.,  v.  City  of  New  York,  130  N.  Y.  A.  D.  531. . .  178 

Heroy  v.  Hendricks,  4  E.  D.  Smith  (N.  Y.)  768 174 

Herrick  v.  Estate  of  Sewall  Belknap  et  al.,  27  Vt.  673 13 

Hickey  v.  Schwab,  64  How.  Pr.  (N.  Y.)  8 141 


TABLE  OF  CASES  xxix 

Highton  v.  Dessau,  139  N.  Y.  607,  19  N.  Y.  Sup.  395 164 

Hill  v.  Blake,  97  N.  Y.  216 73 

Hinckley  v.  Fields,  etc.,  Co.,  91  Cal.  136 161 

Hoff's  Appeal,  102  Pa.  St.  218 168 

Holbrook  v.  Ives,  44  Ohio  St.  516 168 

Holding  v.  Pigott,  7  Bing.  465,  474 50 

Holl  v.  Long,  34  Misc.  (N.  Y.)  1 164 

Homersham  v.  Wolverhampton  Water-works  Co.,  6  Exch.  137  13 

Horgan  v.  New  York,  114  N.  Y.  A.  D.  555 42 

Horn,  etc.,  Co.  v.  Steelman,  215  Pa.  St.  187 145 

Howard  v.  Pensacola,  etc.,  Co.,  24  Florida  560 115,  116 

Hubert  v.  Aitken,  2  N.  Y.  Supp.  711,  5  N.  Y.  Supp.  839,  15 

Daly  (N.  Y.)  237,  123  N.  Y.  655 76,  81,  82,  86,  149 

Hunter  v.  Truckee  Lodge,  etc.,  14  Nev.  24 171 

Hutchinson  v.  Tatham,  Law  Rep.  8  C.  P.  482 50 

Huttig  Bros.,  etc.  Co.  v.  Denny  Hotel  Co.,  6  Wash.  122 

167,  170,  173 

I. 

laege  v.  Bossieux,  15  Grat  (Va.)  83 175 

Irving  v.  Morrison,  27  C.  P.  (Upper  Canada)  242 88 

Isaacs  v.  Dawson,  70  A.  D.  (N.  Y.)  232,  174  N.  Y.  537 120 

J. 

Jackson  Architectural  Iron  Works  v.  Rouss,  39  St.  Rep.  359, 

15  N.  Y.  Supp.  137,  133  N.  Y.  538 27 

Jenkins  v.  Betham,  15  C.  B.  189 67 

Johnson  v.  McClure,  10  N.  M.  506 149 

v.  O'Neill  et  al.,  148  N.  W.  (Mich.  1914)  364 55 

v.  Wanamaker,  17  Pa.  Sup.  Ct.  301 75 

Jones  v.  Brown,  54  Iowa  74 87 

v.  Reg.,  7  Can.  Sup.  Ct.  570 18 

Joplin  Supply  Co.  v.  West,  149  Mo.  App.  78 143 

K. 

Kane  v.  Stone  Co.,  39  Ohio  St.  1 163 

Kelly  v.  Bloomingdale,  19  N.  Y.  Supp.  126,  139  N.  Y.  343 172 

v.  Fejervary,  78  Northwestern  828 126 

Kenny  v.  Gage,  33  Vt.  302 140 

Kerwin  v.  Post,  120  N.  Y.  A.  D.  179 157 

Kilgore  v.  Northwest  Texas  Baptist  Educational  Society,  89 

Tex.  465 27 

Kimberly  v.  Dick,  L.  R.  13  Eq.  1 17 


XXX  TABLE  OF  CASES  [References 

are  to 
Pages.} 

Kirk  v.  Guardians,  etc.,  2  Phila.  640,  i  Redfield  Am.  R,  R. 

Cases,  305 16 

Kirschner  v.  Mahoney,  96  N.  Y.  Supp.  195 171 

Knapp  v.  Brown,  45  N.  Y.  207 145 

Knelly  v.  Horwath,  208  Pa.  St.  487,  57  Atlantic  957 144 

Knight  v.  Norris,  13  Minn.  473 60,  149 

Knowlton  v.  Ellis,  12  Phil.  (Pa.)  396 170 

Kutts  v.  Pelby,  20  Pick.  (Mass.)  65 40,    45 


L. 

La  Foucherie  v.  Knutzen,  58  N.  J.  L.  234 176 

LaGrill  v.  Mallard,  90  Cal.  373 161,  162 

Laird  v.  Moonan,  32  Minn.  358 143 

Lake  v.  McElfatrick,  139  N.  Y.  349,  46  N.  Y.  St.  Rep.  437, 

19  N.  Y.  Supp.  494 74 

Lambert  v.  Sanford,  55  Conn.  437 59 

Langley  v.  Rouss,  185  N.  Y.  201 124 

v.  Rouss,  85  (N.  Y.)  A.  D.  27 17 

La  Pasta  v.  Weil,  20  Misc.  (N.  Y.)  554,  20  Misc.  (N.  Y.)  10. .  171 
Larrimore  v.  Comanche  County  (Tex.  Civ.  Apps.  Sep.  1895) 

32  S.  W.  367 70 

Lavanway  v.  Cannon,  37  Wash.  593,  79  Pac.  1117 107 

Lee  v.  Lord  Bateman.    Times,  October  31,  1893 30 

Legg  v.  Dunleavy,  80  Mo.  558,  50  Am.  Rep.  512 7 

Lester  v.  Houston,  101  North  Carolina,  605 161-162 

Leverone  v.  Arancio,  179  Mass.  439 17 

Lewis  v.  Slack,  27  Mo.  App.  119 5,  18,    25 

L'Hommedieu  v.  Winthrop,  59  A.  D.  (N.  Y.)  192 165 

Libbey  et  al.  v.  Tidden  et  al.,  192  Mass.  175 150,  154 

Linden  Steel  Co.  v.  Rough  Run  Manufacturing  Co.,  158  Pa. 

St.  238 170 

Lippincott  v.  Yorke,  86  Tex.  276 156 

Loftus  v.  Jorjorian,  194  Mass.  165,  80  N.  E.  235 106 

Lonford  v.  Diettrich,  87  Ala.  250 no 

Loomis  v.  Knox,  60  Conn.  343 140 

Lord  v.  Thomas,  64  N.  Y.  107 58 

Lottman  v.  Barnett,  62  Missouri  159 69,  75,    85 

Louden  v.  Coleman,  59  Ga.  653 167 

Louisville  Foundry  Co.  v.  Patterson  (Ky.  Ct.  of  App.  May 

9th,  1906)  93  S.  W.  22 106 

Louisiana  Molasses  Co.  v.  Le  Sassier  et  al.,  52  La.  Ann.  2070      9 

Ludbrook  v.  Barrett,  46  L.  J.  C.  P.  798. 181 

Lunsford  v.  Dietrich,  86  Ala.  250 182 


TABLE  OF  CASES  xxxi 

Lyle  v.  Jackson  Co.,  23  Arkansas  63 115 

M. 

Maak  v.  Schneider,  57  Mo.  App.  431 42 

Maas  v.  Hernandez,  48  La.  Ann.  264,  19  So.  269 40 

Macomber  v.  Bigelow,  126  Cal.  9 174 

Macondray  v.  Simmons,  i  Cal.  393 142 

Mahon  v.  Guilf oyle,  18  N.  Y.  Supp.  93 163 

Mahoney  v.  Oxford  Realty  Co.,  133  A.  D.  (N.  Y.)  656 124 

Majory  v.  Shubert,  82  (N.  Y.)  A.  D.  633 114 

Malbon  v.  Birney,  n  iWis.  107 163 

Maldard  et  al.  v.  Moody  et  al.,  105  Ga.  400 18 

Machester  v.  Searle,  121  Mass.  418 146 

Marcotte  v.  Beaupre,  15  Minn.  152 40,    54 

Marquis  v.  Lauretson,  ( Iowa  Sup.  Ct.  1888) ,  40  N.  W.  73 44 

Marshall  v.  Cohen,  n  Misc.  (N.  Y.)  397 145 

Martin  v.  Oberle,  85  N.  Y.  Misc.  35 in 

Martine  v.  Nelson,  51  111.  422 142 

Marx  v.  White  Co.,  143  N.  Y.  Supp.  1036 100 

May  v.  Menton,  18  Misc.  (N.  Y.)  737 163 

Mayes  v.  Reg.,  23  Canadian  Sup.  Ct.  454,  2  Exch.  403 18 

Mayor  v.  Cunliff,  2  N.  Y.  165 68 

McClallan  v.  Smith,  n  Cush.  (Mass.)  238 175 

McCullough  v.  Moore,  in  Illinois  Appeals  545 128 

McDonald  v.  Patterson  &  Co.,  186  111.  381,  84  111.  Apps.  326. .  166 

Mclntosh  v.  Hastings,  156  Mass.  344 18 

McKeon  v.  Sumner  Building,  etc.,  Co.,  51  La.  Ann.  1961 143 

McKnight,  etc.,  Co.  v.  The  Mayor,  160  N.  Y.  72 102 

McManus  v.  Rothschild,  25  Ontario  L.  R,  138 128 

McMahon  v.  N.  Y.  Co.,  20  N.  Y.  463 121 

McNulty  v.  Offerman,  164  N.  Y.  A.  D.  949 158 

McPherson  v.  Rockwell,  37  Wis.  159 28 

Merchants  Insurance  Co.  v.  Mazange,  22  Ala.  168 140 

Merrigan  v.  English,  9  Mon.  1 13 170,  171 

Merrill-Ruckgaber  Co.  v.  New  York,  160  N.  Y.  A.  D.  513 103 

Merriman  v.  Fowler,  37  N.  J.  L.  89 75 

Meyers  v.  Daly,  7  Daly  (N.  Y.)  471 145 

Mills  v.  Paul,  30  Southwestern  558 126,  127 

v.  Weeks,  21  111.  561 24 

Mitchell  v.  Dougherty,  86  Federal  859 121 

v.  Kavanagh,  38  Iowa  286 121 

v.  Packard,  168  Mass.  467 153 

Modern  Steel  Structure  Co.  v.  English  Const.  Co.,  129  Wis. 

31,  108  N.  W.  70 107 


xxxii  TABLE  OF  CASES  [References 

are  to 
Pages.] 

Moffatt  v.  Scott,  8  L.  C.  Jur.  310 90 

Mohawk,  etc.,  Co.  v.  Brown  et.  al.,  163  N.  Y.  A.  D.  157 

107,  108,  109 

Moneypenny  v.  Hartland,  i  C.  &  P.  (Carrington  &  Payne) 

352,  2  C  &  P.  378 42,  53,  86 

Montandon  v.  Deas,  14  Ala.  33 146 

Moon  v.  Guardians  of  the  Poor,  3  Bingham's  N.  Cas.,  814 31 

Moore  v.  Dugan,  179  Mass.  153 163 

Mornan  v.  Carroll,  35  Iowa  22 146 

Morrison  v.  Universal,  etc.,  Co.,  L.  R.  8  Exch.  Cases  197 108 

v.  Whaley,  16  R.  I.  715 174 

Morrison  Co.  v.  Williams,  200  Mass.  406 163 

Morse  v.  Maurer,  35  Pa.  Super.  Ct.  196 115 

Mosher  v.  Lewis,  10  N.  Y.  Misc.  373 155 

Muldoon  v.  Pitt,  54  N.  Y.  269 145,  146 

Mulligan  v.  Mulligan,  18  La.  Ann.  21 60,  149 

Mutual  Benefit,  etc.  Co.  v.  Rowand,  26  N.  J.  Eq.  389,  12  C.  E. 

Green  (N.  J.)  604 149 

N. 

National  Contracting  Co.  v.  Hudson,  etc.  Power  Co.,  67  A.  D. 

(N.  Y.)  620,  170  N.  Y.  439 131 

National  Wall- Paper  Co.  v.  Sire,  163  N.  Y.  122 158 

Nellis  v.  Bellinger,  6  Hun.  N.  Y.  560 159 

Nelson  v.  Spooner,  2  F.  &  F.  613 40,  42 

Nesbit  v.  Braker,  104  N.  Y.  A.  D.  393 163,  164,  165 

Newman  v.  Fowler,  37  N.  J.  L.  89 77,  107 

Newark  Lime,  etc.,  Co.  v.  Morrison,  13  N.  J.  Eq.  133 143 

N.  J.  Steele,  etc.,  Co.  v.  Robinson,  33  Misc.  (N.  Y.)  361 171 

N.  Y.  &  N.  H.  Automatic  Sprinkler  Co.  v.  Andrews,  173  N. 

Y.  25 165 

N.  Y.  Building  Co.  v.  Springfield,  etc.,  Co.,  56  A.  D.  (N.  Y.) 

294 119,  120 

N.  Y.,  etc.,  Terra  Cotta  Co.  v.  Williams,  102  N.  Y.  A.  D.  i . .  167 
N.  Y.  State,  etc.,  Bank  v.  Whitehall  Water,  etc.,  Co.,  161  N. 

Y.  A.  D.  304 101 

Niver  v.  Nash,  35  Pac.  Rep.  (Wash.  Sup.  Ct.  Dec.  1893)  380  69 

Nolte  v.  His  Creditors,  6  Mart.  (N,  S.)  La.  168 175 

Norrington  v.  Wright,  115  U.  S.  188 73 

Norris  v.  Day,  10  L.  J.  N.  S.  Exch.  in  Eq.  43 7 

Noyes  v.  Burton,  29  Barb.  N.  Y.  631 168 

O. 

Oberlies  v.  Bullinger,  75  Hun.  (N.  Y.)  248 122 


TABLE  OF  CASES  xxxiii 

O'Brien  v.  Reg.,  4  Can.  Supreme  Court  529 119 

O'Keefe  v.  St.  Francis'  Church,  59  Conn.  551 113,  123,  124 

Oldershaw  v.  Garner,  38  V.  C.  Q.  B.  37 121 

Olsen  v.  Schwarzwelder,  109  N.  Y.  A.  D.  282,  95  N.  Y.  Supp. 

651  106 

Orlandi  et  al.  v.  Gray  et  al.,  125  Cal.  372 10 

Otis  v.  Dodd,  90  N.  Y.  336 158 

Otis  Elevator  Co.  v.  Dusenbury,  47  Misc.  (N.  Y.)  450 164 

P. 

Pacific  Mutual,  etc.,  Co.  v.  Fisher,  106  Cal.  224 161 

Paladino  Contracting  Co.  v.  Walsh  et  al.,  144  N.  Y.  Supp.  7. .  112 

Palmer  v.  DeWitt,  47  N.  Y.  532 91 

Pappa  v.  Rose,  L.  R.  7  C.  P.  32,  525,  i  Eng.  Rep.  87,  2  Eng. 

Rep.  375 87 

Parker  v.  Anthony,  4  Gray  (Mass.)  289 146 

Pashby  v.  Mayor,  etc.  of  Birmingham,  86  E.  C.  L.  2 121 

Pell  v.  Baur,  133  N.  Y.  377 158 

Pendleburg  v.  Meade,  i  E.  D.  Smith  N.  Y.  728 170 

Pennock  v.  Hooper,  5  Rawle  (Pa.)  290 168 

People  v.  Campbell,  82  N.  Y.  247 4 

People  ex  rel.  Rapid  Transit,  etc.  Co.  v.  Craven,  210  N.  Y. 

443 102,  105 

Pere  Marquette  R.  Co.  v.  Baertz,  36  Ind.  Apps.  408 174 

Perry  v.  Levenson,  82  N.  Y.  A.  D.  94,  178  N.  Y.  559 27 

v.  Potashinski,  169  Mass.  351 145,  168,  170,  173 

Person  v.  Stoll,  72  N.  Y.  A.  D.  141,  174  N.  Y.  548 173 

Petersen  v.  Rawson,  34  N.  Y.  370,  2  Boswell,  N.  Y.  234 

76,77,  84 

Phoenix  Furniture,  etc.,  Co.  v.  Put-In  Bay  Hotel  Co.,  66  Fed. 

683  149 

Pierce  v.  Thurston,  40  App.  Div.  (N.  Y.)  577 40,  5.6 

Pleasant  College  v.  Colett,  142  Kentucky  342 122 

Poitras  v.  Deslauriers,  4  Rev.  Leg.  375 10 

Powell  v.  Nolan,  27  Washington  318 162 

Pratt  v.  Tudor,  14  Tex.  37 140 

Prince  v.  Neal  Millard  Co.,  124  Ga.  892 143,  171 

Pritzlaff,  etc.  Co.  v.  Berghoefer,  103  Wis.  359 163 

R. 

Raeder  v.  Pensberg,  6  Mo.  App.  445 149 

Rafter  v.  Sullivan,  13  Abbts.  Pr.  (N.  Y.)  262 141 

Randell  et  al.  v.  Trimen,  18  C.  B.  (Common  Bench)  786 33 


xxxiv  TABLE  OF  CASES  [References 

are  to 
Pages.] 

Reg.  v.  Stars  et  al.,  Can.  Sup.  Ct.  118 18 

Renton  v.  Monniere,  77  Cal.  449 25 

Resher  v.  Freres  des  Ecoles  Chretiennes,  34  L.  C.  Jur.  89 45 

Rex.  v.  Peto,  i  Young  &  Jarvis  37 18 

Richard  v.  Clark,  43  Misc.  (N.  Y.)  622 17,  27 

Richardson  v.  Hickman,  32  Ark.  406 168 

Rinn  v.  Electrical  Power  Co.,  3  N.  Y.  A.  D.  305 148,  150,  151 

Ripley  v.  U.  S.,  223  U.  S.  695 1 19,  120 

Robinson  v.  Springfield  Iron  Co.,  39  Hun  (N.  Y.)  634 31 

v.  U.  S.,  13  Wall  363 50 

Rochford  v.  Rochford,  192  Mass.  231 163 

Robins  v.  Goddard  ( 1905)  i  K.  B.  294 107 

v.  Bunn,  34  N.  J.  L.  322 168 

Roebling's  Sons'  Co.  v.  Humboldt,  etc.,  Co.,  112  Cal.  288. ...  161 

Rowley  v.  Bigelow,  12  Pick.  (Mass.)  307 108 

v.  James,  31  111.  298 146 

Ruigle  v.  Wallis  Iron  Works,  149  N.  Y.  439 163 

Rush  v.  Able,  90  Pa.  St.  153 145 

S. 

Salem  v.  Lane,  etc.,  Co.  189  111.  593 161 

Savannah,  etc.,  R.  Co.  v.  Grant,  56  Ga.  68 141 

Sawyer  v.  Schick,  30  Okla.  353 140 

Schenck  v.  Uber,  81  Pa.  St.  31 161 

Schillinger  Fireproof  Cement,  etc.,  Co.  v.  Arnott,  86  Hun.  N. 

Y.  182,  152  N.  Y.  584 143 

Schliess  v.  Grand  Rapids,  131  Michigan  52 121,  122 

Schmulbach  v.  Caldwell  et  al.,  215  Fed.  Rep.  70 102 

Schreiner  v.  Miller  67  Iowa  91 69,    74 

Schroeder  v.  Galland,  134  Pa.  St.  277 170,  174 

Scott  v.  Christ's  Church  Cathedral,  i  L.  C.  L.  J.  63 77 

v.  Maier,  56  Mich,  554 59 

Seaman  v.  Biemann,  108  Wis.  365 170,  174 

Sharpe  v.  San  Paulo,  etc.  Co.  27  L.  T.  Rep.  N.  S.  699,  L.  R. 

8  Ch.  App.  605  (Notes)  L.  R.  8  Ch.  App.  597 18 

Shaw  v.  Andrews,  9  Cal.  73 10 

v.  Young,  87  Me.  271    142 

Sherry  v.  Madler,  123  Wis.  621 163 

Shipman  v.  State,  43  Wis.  381 69,    79 

Shurman  v.  George  Backer,  etc.,  144  N.  Y.  Supp.  9 102 

Simpson  v.  Dalrymple,  n  Cushing  (Mass.)  308 145 

Sinclair  v.  Tallmadge,  35  Barb.  (N.  Y.)  602 163 

Slack  v.  Collins,  145  Ind.  569 141 


TABLE  OF  CASES  xxxv 

Small  v.  Burke,  92  A.  D.  (N.  Y.)  338 127 

Smith  v.  Bradbury,  148  Cal.  41 175 

Smith  v.  Bruyere,  152  S.  W.  (Tex.  1913)  813 55 

v.  Coe,  2  Hilt  (N.  Y.)  365,  29  N.  Y.  666 163 

v.  Dickey,  74  Tex.  61,  1 1  S.  W.  1049 40,  42 

v.  Luning,  in  Cal.  308 117 

v.  Molleson,  148  N.  Y.  241 28 

v.  Neubaur,  144  Ind.  95 174 

v.  Ruggiero,  52  A.  D.  (N.  Y.)  382 163 

Smith  et  al.  v.  Farmers  Trust  Co.,  97  Iowa  117 18 

Smithmeyer  v.  U.  S.,  25  Ct.  Cl.  481,  147  U.  S.  342 40,  61 

Snyder  v.  N.  Y.  Central,  etc.,  72  N.  J.  L.  262 174 

Sontag  v.  Brennan,  75  111.  279 168 

Spannhake  v.  Mountain  Construction  Co.  et  al.,  159  A.  D. 

(N.  Y.)  727 ISO 

Spurgeon  v.  MacElwain,  6  Ohio  442 115 

Starkweather  v.  Goodman,  48  Conn.  101 17,  18,  20,  24 

Steger  v.  Arctic  Refrigerating  Co.,  89  Tenn.  453 168 

Stephens  v.  Essex  County  Park  Commission  (C.  C.  A.)  143 

Fed.    844 106 

v.  United  R.  R.,  etc.,  Co.  29  Ohio  St.  227 174 

Stewart  v.  Boehme,  53  111.  App.  Court  463 76 

Stowell  v.  Simmons,  i  Cal.  45.2 142 

Straus  v.  Buchman  et  al.,  96  N.  Y.  App.  Div.  270 75,  78,  86 

Stryker  v.  Cassidy,  76  N.  Y.  50,  10  Hun.  (N.  Y.)  18.  .148,  149,  150 

Stuart  v.  City  of  Cambridge,  125  Mass.  102 18,  21,  24,  32 

Stubbs  v.  Hollywell  R.  Co.,  L.  R.  2  Exch.  311 89,  90 

Sundstrom  v.  The  State,  213  N.  Y.  68,  158  N.  Y.  A.  D.  241. . .  100 

Swasey  v.  Granite,  etc.  Co.,  158  N.  Y.  A.  D.  549 150 

Sweet  v.  James,  2  R.  L  270 141,  142 

v.  Morrison,  116  N.  Y.  19 119,  132 

T. 

Tahrland  v.  Rodier,  16  L.  O.  Rep.  473 7 

Tayloe  v.  Sandiford,  7  Wheat  (U.  S.)  13 128 

Taylor  v.  Gilsdorff,  74  111.  354 149 

Tennis  Bros.  Co.  v.  Wetzel,  etc.,  R.  Co.,  140  Fed.  193 142 

Tenth  National  Bank  of  Philadelphia  v.  Smith  Construction 

Co.,  218  Pa.  St.  581,  67  Atlantic  872 144 

Thayer  v.  Vermont  Central  Railroad  Co.,  24  Vt.  440 13 

The  Fireproof  Building  Co.  v.  The  First  National  Bank,  et  al., 

54  N.  Y.  Super.  Court  511 23 

The  National  Contracting  Co.  v.  Hudson  River  Water  Power 

Co.,  192  N.  Y.  209 26 


xxxvi  TABLE  OF  CASES  [References 

are  to 
Pages.] 

The  President,  etc.,  of  the  Delaware  &  Hudson  Canal  Co.  et 

al.,  v.  Penn  Coal  Co.,  50  N.  Y.  250 132 

Thomas  v.  Fleury,  26  N.  Y.  26 102 

v.  Stewart,  132  N.  Y.  580 102 

Thomsbn-Starrett  Co.  v.  Brooklyn  Hts.  Realty  Co.,  in  N.  Y. 

A.  D.  358 148,  164 

Throckmorton  v.  Shelton,  68  Conn.  413 140 

Tilly  v.  County  of  Cooke,  103  U.  S.  155 48 

Tobias  v.  Liesberger,  105  N.  Y.  404 73 

Tommasi  v.  Archibald,  114  N.  Y.  A.  D.  838 140 

Tompkins  Co.  v.  Monticello,  etc.,  Co.,  137  Fed.  625 163,  164 

Traitel  v.  Oussani,  51  Misc.  (N.  Y.)  667,  135  N.  Y.  St.  Rep. 

(101  N.  Y.  Supp.)  105 106 

Traitel  Marble  Co.  v.  Brown  Bros.  Inc.,  159  N.  Y.  A.  D.  485. .  101 
Tri-Borough,  etc.,  Co.  v.  Wechsler  Realty  Co.,  163  N.  Y.  A.  D. 

901  125 

Trueman  v.  Loder,  1 1  A.  and  E.  589 50 

Trust  Co.  v.  Guigues,  76  N.  J.  Eq.  495 163 

Tubridy  v.  Wright,  144  N.  Y.  519,  7  Misc.  N.  Y.  403 168 

Turnes  v.  Brenckle,  249  111.  394 141 

Turney  v.  Bridgeport,  55  Conn.  412 115 

U. 

United  States  v.  Buchanan,  8  How.  83 51 

v.  Ellicott,  223  U.   S.  524 1 15 

United  States  Blowpipe  Go.  v.  Spencer,  40  W.  Va.  698 143 

Updike  v.  Skillman,  27  N.  J.  L.  131 155 

Uvalde,  etc.,  Paving  Co.  v.  Central,  etc.,  Co.,  84  N.  J.  L.  297. .  102 

V. 

Vail  v.  Meyer,  71  Ind.  159 146 

Vandenberg  v.  P.  T.  Walton,  etc.,  Co.,  19  Okla.  169 174 

Vanderhoof  v.  Shell,  42  Oregon  578 27 

Vanderwerker  et  al.  v.  Vermont  Central  Railroad  Co.,  27  Vt. 

125 ;  Id.  130 13 

Van  Stone  v.  Stillwell,  etc.,  Manfg.  Co.,  142  U.  S.  128. 140,  141,  143 

Vaughan  v.  Ford,  162  Mich.  37 170 

Vigeant  v.  Scully,  20  111.  App.  Court  437 76,  86,    88 

Vogel  v.  Luitwieler,  52  Hun.  (N.  Y.)  184 174 

Von  Dorn  v.  Mengedoht,  41  Neb.  5.25 149 

W. 

Wharton  et  al.  v.  Real  Estate  Inv.  Co.  et  al.,  180  Pa.  St.  168 

36  Atlantic  725 144 


TABLE  OF  CASES  xxxvii 

White  v.  Abbott,  188  Mass.  99,  74  N.  E.  305 106,  122 

v.  Miller,  18  Pa.  St.  52 H3,  170 

v.  San  Rafael  and  San  Quentin  R.  R.  Co.,  50  Cal.  417.  .16,  124 

Whitla  v.  Taylor,  6  La.  Ann.  480 175 

Whittier  v.  Wilbur,  48  Cal.  175 143 

Wigton's  Appeal,  28  Pa.  St.  161 168 

Wilcox  v.  Stephenson,  30  Fla.  377 121 

Wilcox  Manufacturing  Co.  v.  Brazos,  74  Conn.  208 117 

Wilemet  Steam,  etc.,  Co.  v.  Los  Angeles  College  Co.,  94  Cal. 

239  1 16 

Willets  v.  Earl,  53  N.  J.  L.  270 176 

Willey  v.  Tapping,  146  Pa.  St.  427 170 

Wills  et  al.  v.  Abbey  et  al.,  27  Texas  202 4 

Winder  v.  Caldwell,  14  How.  U.  S.  434 162 

Windrim  v.  Philadelphia,  9  Philadelphia,  Pa.  550 90 

Withdrew  L.  Co.  v.  Glasgow,  etc.,  Co.,  101  Fed.  863 141,  143 

Wolf  v.  Pa.  R.  Co.,  29  Pa.  Superior  Court  439 143 

Wollreich  v.  Fettretch,  4  N.  Y.  Supp.  326 164 

Womble  v.  Hickson,  91  Arkansas  266 116 

Wood  v.  Donaldson,  17  Wend.  (N.  Y.)  550,  22  Wend.  395 174 

Woodruff  v.  Rochester  &  Pittsburgh  R.  R.  Co.,  108  N.  Y. 

39  13,  14,  17,  24 

Wagner  Co.  v.  Cawker,  1 12  Wis.  532 18,  24,  28 

Wahle,  etc.,  Co.  v.  59th  St.  &  Madison  Ave.  Co.,  153  N.  Y. 

A.  D.  17 156 

Wahlstrom  v.  Trulson,  165  Mass.  429 173 

Walbank  v.  Protestant  Hospital,  7  Montreal  Q.  B.  166 46 

Walsh  v.  St.  Louis  Exposition,  etc.,  Assn.,  16  Mo.  App.  502,  90 

Mo.  459 53 

v.  St.  Louis,  etc.,  Assn,  101  Mo.  534 42 

Wambald  et  al.  v.  Gehring,  109  Wis.  122 28 

Wandelt  v.  Cohen,  15  Misc.  (N.  Y.)  90 45 

Wandenberg  v.  P.  T.  Walton,  etc.,  Co.,  19  Okla.  169 174 

Ward  v.  Hudson  River,  etc.,  Co.,  125  N.  Y.  230 127,  128,  129 

v.  Yarnelle,  173  Ind.  535 141 

Watts  v.  Metcalf,  23  Ky.  L.  Rep.  2189,  66  S.  W.  Rep.  824 18 

Waugh  v.  Morris,  L.  R.,  8  Q.  B.  202 118 

Weatherhogg  v.  Board  of  Commissioners  of  Jasper  County, 

158  Ind.  14 28 

Weaver  v.  Atl.,  etc.  Co.,  57  N.  J.  Eq.  547 176,  177 

Webster  City,  etc.,  Co.,  v.  Chamberlin,  137  Iowa  717 145 

Weeks  v.  O'Brien,  141  N.  Y.  199 102,  165 

v.  The  Rector,  etc.,  of  Trinity  Church,  56  (N.  Y.)  A. 

D.    195 17 


xxxviii  TABLE  OF  CASES  [References 

are  to 
Pages.] 

Weggner  v.  Greenstine,  1 14  Mich.  310 13 

Wendt  v.  Martin,  89  111.  139 145 

Woolf  v.   Schaefer,  103  N.  Y.  A.  D.  567,  41   Misc.  N.  Y. 

640 162-163 

Wright  v.  Eisle,  86  N.  Y.  A.  D.  356 90,  91 

v.  Meyer  (Tex  Civ.  App.  1894)  25  S.  W.  Rep  1122 28 

v.  Pohls,  83  Wis.  560 171 

Wyman  v.  Hooker,  2  Cal.  App.  36,  83  Pac.  79 106 

Wymard  v.  Deeds,  21  Pa.  Super.  Ct.  332 28 


Y. 
Yeats  v.  Pirn,  Holt  N.  P.  95 50 


PART  I 
THE  ARCHITECT  AND  THE  OWNER 


CHAPTER  I 
THE  RELATIONSHIP  IN  GENERAL 

§  i.  Similar  to  Other  Professional  Relation- 
ships.— The  relationship  existing  between  the 
architect  and  the  owner,  his  client,  is,  to  a  marked 
degree,  similar  and  in  many  respects  substantially 
identical  with  the  relationship  existing  between 
an  attorney  and  his  client  and  a  physician  and  his 
patient.1  In  each  case  the  professional  man  is  in 
a  position  of  trust  and  confidence.  In  each  he  is 
the  recognized  agent  of  his  client.  In  each  he  is 
assumed  to  possess,  by  virtue  of  the  very  nature 
of  his  calling,  a  special  degree  of  skill  and  ability 
therein;  and  in  each,  though  as  to  this  infinitely 
more  in  the  case  of  the  attorney  or  physician  than 
in  the  case  of  the  architect,  he  is  under  certain 
obligations  to  the  public  and  to  the  State. 

§  2.  Exceptions  to  Rule. — Unlike  the  attorney, 
the  architect,  if  under  examination  in  court,  may 
not,  it  seems,  successfully  plead  privilege  as  to 
communications  between  him  and  his  employer  2 
nor  yet,  it  has  been  held,  does  he  render  himself 
liable  in  damages  by  making  disclosures  of  his 
employer's  intention  to  build  or  the  location  of  the 
proposed  building,3  provided  of  course  that  he 

1  Coombs  v.   Beede,  89  Me.         2Wait,  Eng.  &  Arch.  Juris., 
187.  772. 

3 


4  LAW  OF  ARCHITECTURE  AND  BUILDING 

has  neither  agreed  to  keep  silent  as  to  these  mat- 
ters nor  been  requested  by  his  employer  to  treat 
them  as  confidential.  The  rule  allowing  the  ar- 
chitect to  make  disclosures  of  this  character,  with- 
out the  incurring  of  liability,  is  not,  however, 
sufficiently  well  established  to  be  considered  a  safe 
one  to  act  upon,  entirely  aside  from  the  ethical 
questions  involved ;  and  a  case 4  which  has  been 
cited  5  in  support  of  the  rule  allowing  disclosure 
by  an  architect  or  engineer  of  the  building  site 
selected  by  the  employer  does  not  seem  to  warrant 
its  citation  in  this  connection,  for  the  reason  that 
the  decision  is  specifically  stated  to  be  applicable 
to  situations  where  no  relations  of  trust  or  public 
confidence  exist.  So  far,  certainly,  as  public 
officers  are  concerned,  such  disclosures  have  not 
been  viewed  with  favor.6 

Irrespective  of  whether  his  services  be  gratu- 
itous or  not,7  the  rule  holds  good  that  the  archi- 
tect must,  subject  only  to  the  certain  possible  ex- 
ceptions, such  as  the  exception  relating  to  privi- 
leged communications  just  noted,  and  necessarily 
occasioned  by  the  peculiar  attributes  and  customs 
of  each  profession,  preserve  toward  his  client  in 
all  their  dealings,  the  same  general  attitude  as  that 
which  characterizes  the  relationships  of  physician 
and  patient,  and  attorney  and  client. 

8  Havens  v.  Donahue,  43  *  Wills  et  al.  v.  Abbey  et 

'Pac,  Rep.  (Cal.  Supreme  al.,  27  Texas  202;  and  see 

Court  1896)  962.  Flanikin  v.  Pokes,  15  Texas 

4  Green  v.  Brooks,  81  Cal.  180;  DeLeon  v.  White,  9 

328,  22  Pac.  Rep.  849.  Texas  598. 

8  Wait,  Eng.  &  Arch.  Juris.,  7  People  v.  Campbell,  82 

p.  772.  N.  Y.  247. 


THE  RELATIONSHIP  IN  GENERAL  5 

§  3.  Absolute  Good  Faith  Required. — It  is  fun- 
damental that  the  architect  must  act  for  his  client 
in  absolute  and  entire  good  faith  throughout,  and 
in  all  ways  consistently  with  the  trust  and  confi- 
dence which  the  client  has  reposed  in  him.8 

With  the  contractor,  the  relationship  of  the  ar- 
chitect, as  will  be  seen,  is  different,  but  here  too 
he  is  under  the  necessity  of  acting  in  perfect  sin- 
cerity and  good  faith,  although  under  none  of 
those  special  obligations  which  flow  from  his  re- 
lation to  his  client  and  from  the  direct  contract 
between  them.  To  the  public  also,  as  in  the 
proper  supervision  of  the  construction  of  public  or 
office  or  tenement  or  apartment  buildings  to  be 
occupied  or  used  by  the  public,  he  is  under  obliga- 
tions to  use  all  reasonable  care  and  diligence,  al- 
though, publicly,  his  obligations  and  duties  are 
naturally  less  than  those  of  a  physician  on  whom 
the  public  health  may  depend  or  of  an  attorney, 
who  is  an  officer  of  the  court  before  which  he 
practices.  The  public  obligations  of  the  architect 
are,  however,  being  recognized  more  generally  of 
late  in  the  United  States  as  is  evidenced  by  deci- 
sions recognizing  his  accountability  to  third  par- 
ties, under  circumstances  which  will  be  noted,  and 
by  legislation  in  various  States  regulating  the  re- 
quirements for  admission  of  architects  to  practice 
and  requiring  the  obtaining  of  State  certificates 
before  practice  may  be  commenced.9 

8  Lewis  v.  Slack,  27  Mo.  Ap.  Engineering   Jurisprudence,   p. 

119;  Badger  v.  Kerber,  61  111.  446-7. 

328 ;  Clark  on  Architects,  p.  94 ;  9  Cp.  Chap.  454,  Laws  of  1915, 

Wait    on     Architectural     and  New  York,  amending  Chap.  25, 


6  LAW  OF  ARCHITECTURE  AND  BUILDING 

§  4.  Architect  to  Have  No  Concealed  or  Con- 
flicting Interest  in  Contract. — Inasmuch  as  the 
position  of  the  architect  is  one  of  trust  and  confi- 
dence, it  is  clear  that  he  must  not,  certainly  not 
without  the  consent  of  the  owner,  have  the  slight- 
est pecuniary  interest  in  the  contract  or  in  its 
performance,  other  than  his  interest  under  his 
agreement  with  his  employer,  or  private  agree- 
ments or  understandings  of  any  character  what- 
soever, relative  to  the  contract  or  the  work  in 
hand,  with  the  contractor  or  with  subcontractors 
or  employees.  Such  agreements  or  understand- 
ings at  once  disqualify  the  architect  from  acting 
in  that  entirely  disinterested  and  single-minded 
manner,  which  his  position  of  trust  and  confidence 
requires.  By  entering  into  any  such  private 
agreement  or  understanding,  or  by  securing  any 
pecuniary  interest  in  the  contract  other  than  his 
interest  under  his  agreement  with  his  employer, 
the  architect  exposes  himself  at  once  to  the  danger 
of  dismissal  by  his  client;  for  it  is  a  well  recog- 
nized legal  principle  that  an  architect  who  has  any 
pecuniary  interest  in  a  contract  or  its  performance 
other  than  his  interest  in  the  agreed  compensation 
which  he  is  to  receive,  or,  in  the  absence  of  express 
agreement  regarding  compensation,  his  interest  in 
such  reasonable  compensation  as  he  may  be  en- 
titled to,  or  an  architect  who  has  accepted  com- 
missions in  connection  with  the  contract  from  the 

New  York  Laws  1909;  N.  California,  Stat.  1901,  p.  641, 
J.  P.  L.  1902,  p.  54;  vol.  I,  N.  and  see,  Fitzhugh  v.  Mason,  2 
J.  Compiled  Stat.  pp.  110-113,  Cal.  App.  220,  83  Pac.  282. 


THE  RELATIONSHIP  IN  GENERAL  7 

contractor,  has  so  acted  as  to  make  it  impossible 
for  him  to  continue  properly  to  represent  his  em- 
ployer, and  that  the  latter  will  be  justified  in  ter- 
minating the  employment  forthwith  accordingly.10 
Where  the  superintendent  of  a  building  whose 
duties  required  that  he  pass  upon  accounts  for  ma- 
terials furnished,  made  an  agreement  with  a  lum- 
ber dealer,  by  the  terms  of  which  the  latter  was  re- 
quired to  pay  the  superintendent  a  commission  on 
all  sales  of  lumber  made  as  a  result  of  the  exercise 
of  his  influence  with  those  by  whom  he  was  em- 
ployed^the  court  held  the  agreement  to  be  void  as 
against  public  policy,  and  this  although  it  ap- 
peared that  it  was  not  the  duty  of  the  superin- 
tendent to  pass  upon  accounts  for  materials  fur- 
nished to  his  employers.11  The  same  court  in  a 
shortly  subsequent  decision  decided  that  a  writing 
charging  a  supervising  architect  with  having 
given  work  upon  a  building,  in  connection  with 
which  he  was  employed,  to  certain  persons  who 
paid  him  a  commission  therefor,  was  not  action- 
able per  se,12  which  is  to  say  that  it  did  not  in  itself 
charge  the  architect  with  any  criminal  or  dis- 
graceful conduct,  or  hold  him  up  to  public  con- 
tempt, scorn,  ridicule,  or  obloquy,  or  tend  to  injure 
him  in  his  profession.  While  opinions  may,  per- 
haps, properly  differ  as  to  whether  such  a  state- 

|10  Norris    v.    Day,    10   L.   J.  lish     Encyclopedia     of     Law, 

N.  S.,  Exch.  in  Eq.,  43;  Tahr-  2d.  ed.,  vol.  2,  pp.  815-816. 

land  v.  Rodier,  16  L.  C.  Rep.  "Atlee  v.  Fink,  75  Mo.  100, 

473;   Lloyds  Law  of  Building  42  Am.  Rep.  385. 

and     Buildings,     second     edi-  *2Legg  v.  Dunleavy,  80  Mo. 

tion,  §11;  American  and  Eng-  558,  50  Am.  Rep.  512. 


8  LAW  OF  ARCHITECTURE  AND  BUILDING 

ment  is  libelous  or  not — and  there  are  those  who 
believe  that  in  our  American  regard  for  free 
speech  and  a  free  press,  we  have  not  always  ac- 
corded sufficient  protection  to  the  individual, 
against  slander  and  against  libel — these  two  cases 
well  illustrate  the  importance  in  which  the  courts 
hold  the  trust  obligations,  if  we  may  so  term  them, 
of  the  architect:  in  that,  even  where  it  does  not 
appear  that  any  damage  has  been  occasioned  the 
owner  by  the  acceptance  of  a  commission  by  the 
superintendent,  nor  yet  that  the  mere  acceptance 
of  the  commission  is  in  itself  to  be  taken  as  an  im- 
proper act  morally  on  the  part  of  the  superintend- 
ent, yet  the  requirement  that  one  in  the  latter's 
position  shall  be  free  to  carry  out  his  duties  with- 
out being  influenced  consciously  or  unconsciously 
by  conflicting  interests,  is  so  insistent  that  the 
commission  agreement  referred  to  was  properly 
held  to  be  against  public  policy  and  consequently 
void. 

Where  the  architect  brings  suit  for  professional 
services  rendered  and  the  owner,  in  defending, 
claims  negligence  on  the  part  of  the  architect  and 
it  appears  that  the  builder  has  made  advances  or 
loans  to  the  architect,  these  advances  and  loans 
are  properly  provable  by  the  owner  as  bearing 
upon  the  question  of  negligence  alleged  in  the 
answer,  no  actual  fraud  having  been  pleaded.13 
So  too  the  duties  of  a  building  superintendent  are 
of  such  a  nature  that  it  is  not  proper  that  he  be 
appointed  by  or  controlled  by  the  contractor ;  and 

18  Oilman  v.  Stevens,  54  Howard's  Prac.  (N.  Y.)  197. 


THE  RELATIONSHIP  IN  GENERAL  9 

the  inconsistency  of  the  two  positions  is  such  that 
a  contract  for  the  employment  of  the  contractor  as 
superintendent  of  his  own  work  will  not  be 
implied.14 

If  the  architect  accept  employment  from  the 
contractor  or  builder  this  act  on  his  part  will  in 
at  least  one  jurisdiction  be  held  to  relieve  the 
owner  from  any  liability  based  on  claims  for  extra 
work ; 15  and  where  the  architect  prepared  the 
plans  and  specifications  and  thereafter  was  made 
the  contractor  for  the  erection  of  the  building,  he 
was  not  allowed  to  claim  that  a  defect  in  construc- 
tion was  one  of  plans  and  specifications  and  not 
of  building,  since  he  was  responsible  both  for 
plans  and  for  construction.16 

§  5.  Limitation  of  Rule — Estoppel  of  Owner. 
— While  it  has  been  seen  that  no  private  agree- 
ments or  understandings  between  the  architect 
and  the  builder  will  be  countenanced,  it  should  be 
noted,  in  limitation  of  the  general  rule,  that,  in 
cases  where  the  circumstances  are  or  must  be 
known  to  the  owner,  the  mere  existence  of  an 
agreement  between  the  architect  and  the  builder 
will  not  be  allowed  to  be  interposed  by  the  owner 
as  a  bar  to  a  recovery  by  the  architect  for  his 
services.  Thus  where  the  owners  employ  an  ar- 
chitect to  superintend  the  construction  of  a  build- 
ing of  which  he  is,  also,  one  of  the  contractors, 

a*  Friedland    v.    McNeil,    33          ie  Louisiana  Molasses  Co.  v. 
Mich.  40.  Le  Sassier  et  al.,  52  La.  Ann. 

15  Day    &    Co.    v.     Pickeris      2070. 
County,  53   S.  Carolina,  46  at 
p.  50. 


io          LAW  OF  ARCHITECTURE  AND  BUILDING 

they  are  not  allowed  in  an  action  by  the  architect 
to  recover  for  his  services  as  such  superintendent, 
it  appearing  that  the  services  have  been  properly 
performed,  to  plead,  in  defence  that,  by  reason  of 
his  occupying  the  two  inconsistent  positions  of  ar- 
chitect and  contractor,  a  recovery  is  barred  on  the 
grounds  of  public  policy.17  Similarly,  the  con- 
tract of  an  architect  with  a  builder,  made  with 
the  knowledge  of  the  owner  and  attached  to  the 
original  building  contract  and  recorded,  is  not  to 
be  considered  as  void  unless  actual  fraud  or  de- 
ception be  shown.18 

§  6.  Assumption  of  Good  Faith. — While  the 
courts  will  not  encourage  or  countenance  any  act 
by  the  architect  inconsistent  with  his  position  of 
trust  and  responsibility  they  are,  nevertheless,  in- 
clined to  consider  the  architect,  by  reason  of  the 
very  nature  of  his  profession,  honorable  and 
single-minded  in  his  employer's  interest  until  the 
opposite  be  shown,  and  will  not  adopt  a  strained 
construction  of  his  natural  and  entirely  honorable 
acts.  In  accordance  with  this  position  a  French 
court  has  refused  to  presume  that  the  architect 
was  employed  by  the  builder  from  the  fact  that  the 
builder  went  to  the  architect  to  see  the  plans  or  to 
borrow  them,19  and  from  the  comparatively  in- 
finitesimal number  of  cases  in  England  and  in  this 
country  in  which  any  improper  conduct  on  the 

17  Shaw  v.  Andrews,  9  Cal.      al. ;   Hayne  v.   Gray ;    125   Cal. 
73-  372. 

18  Orlandi  et  al  v.   Gray  et          19  Poitras    v.    Deslauriers,   4 

Rev.   Leg.  375. 


THE  RELATIONSHIP  IN  GENERAL  11 

part  of  the  architect  has  appeared,  it  is  evident 
that  the  architectural  profession  may,  with  no 
small  degree  of  satisfaction,  view  the  record  for 
loyalty  to  its  ethics,  to  its  duties  and  to  its  re- 
sponsibilities, established  by  its  individual  mem- 
bers. 


CHAPTER  II 


§  7.  Importance  of  Agency  Relationship. — 
There  is  probably  no  phase  of  the  whole  subject 
of  architecture  which  presents  more  questions  for 
legal  determination  and  none  presenting  situa- 
tions of  more  difficulty  and  requiring  more  care- 
ful handling  by  the  architect,  not  only  in  the  inter- 
est of  his  client  but  in  his  own  interest  as  well, 
than  that  dealing  with  the  character,  scope  and 
effect  of  the  agency  of  the  architect. 

In  employment  necessitating  merely  the  prepa- 
ration of  plans  and  specifications,  or  the  giving 
of  expert  advice,  and  in  all  matters  of  mere  con- 
sultation or  dealings  with  the  client  alone,  the 
question  of  agency  does  not  arise,  but  the  moment 
that,  as  in  the  ordinary  case,  there  is  added  the 
duty  of  superintendence,  or  dealings  in  behalf  of 
the  owner  with  the  builder  or  third  parties,  the 
question  of  agency  becomes  at  once  of  vital  im- 
portance; and  the  directions  to  the  contractor  in 
regard  to  the  work,  the  allowance  of  extras,  the 
giving  of  certificates,  the  changing  of  the  contract 
in  any  detail  of  construction,  material,  or  other- 
wise, all  are  at  once  involved. 

§  8.  Agency,     Express     and     Implied. — The 

12 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        13 

agency  of  the  architect  may,  broadly  speaking,  be 
either  express  or  implied.  Where  express,  that 
is  where  the  authority  has  been  conferred  in  defi- 
nite terms,  it  may  be  either  written  or  oral ;  where 
implied  and  where,  consequently,  there  is  no 
formal  agreement  either  written  or  oral  by  which 
to  determine  and  measure  the  extent  and  charac- 
ter of  the  authority  conferred,  the  question  of  the 
architect's  agency  will  be  determined  by  the  ordi- 
nary principles  of  the  law  of  agency  modified  as 
they  may  be  by  circumstances,  and  by  the  customs 
and  rules  governing  the  practice  of  the  architec- 
tural profession.  When  the  terms  are  express, 
whether  written  or  oral,  no  amount  of  custom  will 
justify  a  departure  from  them — assuming  of 
course  that  there  are  no  provisions  which  are 
illegal  or  opposed  to  public  policy — and  the  terms 
of  the  authority  delegated  must  be  strictly  re- 
spected and  adhered  to  and  will  be  disregarded  or 
exceeded  by  the  architect  at  the  immediate  risk  of 
his  incurring  a  direct  personal  liability.1 

§  9.  Extras. — Of  the  many  questions  which 
arise  in  connection  with  the  agency  of  the  archi- 
tect there  are  none,  probably,  of  more  vital  inter- 
est to  the  owner,  to  the  architect,  and  to  the 
builder,  than  those  which  relate  to  the  matter  of 

1  Homersham  v.  Wolver-  nap  et  al.,  27  Vt.  673 ;  Ahern  v. 
hampton  Water-works  Co.,  6  Boyce,  19  Mo.  Ap.  552; 
Exch.  137;  Thayer  v.  Vermont  Woodruff  v.  Rochester  and 
Central  Railroad  Co.,  24  Vt.  Pittsburgh  Railroad  Co.,  108 
440;  Vanderwerker  et  al.  v.  N.  Y.  39;  Weggner  v.  Green- 
Vermont  Central  Railroad  stine,  114  Mich.  310;  Redfield 
Co.,  27  Vt.  125,  Id.  130;  Her-  on  Law  of  Railroads,  6th  ed., 
rick  v.  Estate  of  Sewall  Belk-  vol.  I,  p.  430. 


14         LAW  OF  ARCHITECTURE  AND  BUILDING 

extra  work.  Almost  invariably,  before  the  con- 
tract has  been  finally  completed,  some  extra  work 
becomes  necessary.  It  is  in  the  interest  of  all  con- 
cerned that  the  respective  rights  and  liabilities  of 
the  parties  in  this  connection  be  as  clearly  under- 
stood as  possible.  The  owner  should  understand 
them  that  he  may  not  be  put  to  needless  expense ; 
the  builder  that  he  may  not  be  placed  in  a  position, 
where,  after  proceeding  in  good  faith  with  extra 
work,  he  finds  he  can  not  recover  for  the  work 
which  he  has  done;  and  the  architect  should  un- 
derstand them,  both  that  he  may  safeguard  the 
interests  of  his  client  and  that  he  may  not  himself 
incur  a  personal  liability  to  pay  for  extra  work 
performed  as  the  result  of  an  authorization  given 
by  him,  but  which  he  had  no  power  or  right  to 
give. 

In  every  case  where  the  contract  contains  a 
clause  or  clauses  designed  to  protect  the  owner 
from  claims  for  extra  work,  both  the  architect 
and  the  contractor  will  do  well  to  proceed  most 
cautiously,  the  one  in  authorizing  and  the  other 
in  performing  any  extra  work,  in  any  manner  in- 
consistent with  a  strict  interpretation  of  the  con- 
tract provisions. 

In  a  leading  case  already  referred  to  2  a  con- 
struction company  contracted  with  the  defendant, 
a  railroad  company,  to  construct  a  portion  of  its 
road.  The  construction  company  in  turn  made 
a  contract  with  a  third  company  to  complete  a  cer- 
tain portion  of  the  section  of  the  road  covered  by 

2  Woodruff  v.  Rochester  &  Pittsburgh  R.  R.  Co.,  108  N.  Y.  39- 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        15 

the  contract  between  the  construction  company 
and  the  railroad  company.  The  third  company 
in  turn  sublet  a  portion  of  the  work  undertaken 
by  it,  to  the  plaintiffs.  Included  in  the  terms 
of  the  subcontract  was  the  following:  "Extra 
Work — nor  shall  any  claim  be  allowed  for  extra 
work  unless  the  same  shall  be  done  in  pursuance 
to  a  written  order  from  the  engineer  in  charge 
and  the  claim  made  at  the  first  settlement  after 
the  work  was  executed,  unless  the  chief  engineer, 
at  his  discretion,  should  direct  the  claim  or  such 
part  as  he  may  deem  just  and  equitable  to  be 
allowed."  The  plaintiffs  in  performing  their 
work  were  called  upon  to  do  considerable  excavat- 
ing which  was  necessitated  by  the  sides  of  the  cut 
which  they  were  making  caving  in  on  a  number  of 
occasions.  For  this  work  they  claimed  extras 
and  the  proof  tended  to  show  that  they  did  the 
work  at  the  request  of  the  engineers  in  charge. 
There  was  no  evidence  that  these  engineers  had 
any  special  authority  whatever  from  the  defend- 
ant to  bind  it  for  this  work,  or  to  enter  into  any 
contract  on  its  behalf  relative  thereto.  Neither 
did  it  appear  that  the  defendant  had  ratified  the 
agreement  alleged  to  have  been  made  with  the 
plaintiffs  by  the  engineers.  The  Court,  after  re- 
ferring to  the  terms  of  the  contract  with  reference 
to  extra  work  and  above  quoted,  said : 

"This  was  one  of  the  terms  of  the  contract  and  we  are 
unable  to  perceive  that  the  engineers  had  any  power  or 
authority  to  alter  or  change  it.  It  was  inserted  in  the 
contract  to  protect  the  defendant  from  claims  for  extra 


16          LAW  OF  ARCHITECTURE  AND  BUILDING 

work  which  might  be  based  upon  oral  evidence,  after  the 
work  was  completed  and  when  it  might  be  difficult  to 
prove  the  facts  in  relation  thereto.  If  the  engineers  in 
charge  had  an  unlimited  authority  to  change  the  contract 
at  their  will,  and  to  make  special  agreements  for  work 
fairly  embraced  therein,  then  the  defendant  had  very  little 
protection  from  the  reduction  of  their  contract  to  writ- 
ing. If  these  engineers  were  the  agents  of  the  defendant, 
they  were  its  agents  with  special  powers,  simply  to  do 
the  engineering  work  and  to  superintend  and  direct  as  to 
the  execution  of  the  contract.  But  they  had  no  power 
to  alter  or  vary  the  terms  of  the  contract  or  to  create 
obligations  binding  upon  the  defendant  not  embraced  in 
the  contract." 

To  state  the  rule  in  slightly  different  form: 
"Where  the  contract  contains  express  provisions 
that  no  allowance  shall  be  made  against  the  com- 
pany for  extra  work  unless  directed  in  writing 
under  the  hand  of  the  engineer  or  some  other  per- 
son designated,  or  unless  some  other  requisite  for- 
mality be  complied  with,  the  party  who  performs 
extra  work,  upon  the  assurance  of  any  agent  of 
the  company,  that  it  will  be  allowed  by  the  com- 
pany, without  the  requisite  formality,  must  look 
to  the  agent  for  compensation  and  can  not  recover 
of  the  company,  either  at  law  or  in  equity."  3 

8  Redfield    on    the    Law    of  and    additions,    also    provides 

Railroads,   6th    ed.,   vol.    I,   p.  that    no    payment    for    extra 

430;  White  v.  San  Rafael  and  work  shall  be  made,  unless  the 

San    Quentin    R.    R.    Co.,    50  latter    has    been    ordered    in 

Cal.     417,     holding     a     verbal  writing  by  the  engineer;  Kirk 

order  for  extra  work  to  be  of  v.    Guardians,    etc.,    2    Phila. 

no  effect   where   the  contract,  640,    i    Redfield    Am.    R.    R, 

while  providing  that  the  engi-  Cases,  305. 
neers    may    direct    alterations 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        17 

It  must  be  clearly  understood  that  inasmuch  as 
the  agency  of  the  architect  is  limited  by  the  terms 
of  the  contract  between  himself  and  his  client,  the 
fact  that  he  is  employed  as  architect  does  not  in 
itself  constitute  him  the  general  agent  of  the 
client.4  The  owner  may  constitute  the  architect 
his  general  agent  for  all  purposes  and  by  declar- 
ing him  broadly  to  be  "the  agent  of  the  owner" 
invest  him  thereby  with  authority  to  bind  the 
owner  for  extras  and  for  alterations,5  but  the 
general  rule  is  entirely  clear  that  an  architect  en- 
gaged to  superintend  the  construction  of  a  build- 
ing must  see  that  the  contract  is  carried  out  in  ac- 
cordance with  its  terms,  and  has  no  right  whatso- 
ever, in  the  absence  of  special  authorization,  to 
change,  to  alter,  or  to  modify,  the  terms  of  the 
contract  between  the  owner  and  the  builder,  nor 
to  make  new  contracts  involving  additional  ex- 
penses, nor  to  make  any  alterations  in  the  plans 
and  specifications,  nor  to  authorize  extra  work  or 
material  other  than  that  specified  in  the  original 
contract.6 

4  Starkweather  v.  Goodman,  v.  Dick,  L.  R.  13  Eq.  i. 

48  Conn.  101 ;  Crockett  v.  6  Fireproof  Building  Co.  v. 

Chattahoochen  Brick  Co.,  95  First  National  Bank,  54  Super. 

Ga.  540;  Adlard  v.  Muldoon,  Court  (N.  Y.)  511;  Glacius  et 

45  111.  193;  Coombs  v.  Beede,  al.  v.  Black,  50  N.  Y.  145; 

89  Me.  187;  Leverone  v.  Dillon  v.  City  of  Syracuse,  5 

Arancio,  179  Mass.  439;  Silv.  Supreme  Court  (N.  Y.) 

Weeks  v.  The  Rector,  etc.,  of  575,  9  N.  Y.  Supp.  98,  29  N. 

Trinity  Church,  56  (N.  Y.)  Y.  St.  Rep.  912;  Fitzgerald  v. 

A.  D.  195;  Dodge  v.  McDon-  Moran,  141  N.  Y.  419;  Wood- 

nell,  14  Wls.  553.  ruff  v.  Rochester,  etc.,  R.  Co., 

"Langley  v.  Rouss,  85  (N.  108  N.  Y.  39;  Richard  v.  Dark, 

Y.)  A.  D.  27;  Kimberly,  43  Misc.  (N.  Y.)  622;  Stark- 


i8 


LAW  OF  ARCHITECTURE  AND  BUILDING 


§  10.  Illustrations  of  Rule. — A  leading  case  on 
this  whole  agency  question,  decided  in  Connecti- 
cut, as  early  as  1880,  arose  on  the  following  state 
of  facts :  a  builder  entered  into  a  written  contract 
with  the  defendant  whereby  he  agreed  to  furnish 
the  materials  to  build  a  house  for  the  defendant  in 
accordance  with  specified  plans  and  specifications 
and  for  an  agreed  compensation.  It  was  pro- 
vided that  all  the  materials  and  work  should  be 
accepted  by  the  architect,  who  was  specified,  and 
that  the  latter  should  superintend  the  construction 
of  the  building.  The  builder,  in  entire  good  faith 
and  under  the  direction  of  the  architect,  per- 
formed certain  extra  work,  which  varied  from 


weather  v.  Goodman,  48  Conn. 
101;  Gray  v.  La  Societe  Fran- 
caise,  etc.,  131  California,  566; 
Maldard  et  al.  v.  Moody  et  al., 
105  Ga.  400 ;  but  see  Smith  et  al. 
v.  Farmers  Trust  Co.,  97  Iowa 
117,  to  the  effect  that  where 
the  contract  expressly  stip- 
ulates that  excavations  shall  be 
made  under  the  direction  of  the 
architect  specified,  a  variation 
from  the  plans,  by  direction  of 
the  architect,  although  without 
the  knowledge  of  the  owner,  will 
not  justify  any  deduction  from 
the  contract  price.  Adlard  v. 
Muldoon,  45  111.  193 ;  Campbell 
v.  Day,  90  111.  363;  Watts  v. 
Metcalf,  23  Ky.  L.  Rep.  2189, 
66  S.  W.  Rep.  824;  Lewis  v. 
Slack,  27  Mo.  App.  119;  Bond 
v.  The  Mayor,  etc.,  19  N.  J. 
Eq.  376;  Mayes  v.  Reg,  23 


Canadian  Sup.  Ct.  454,  affirm- 
ing 2  Exch.  403 ;  Jones  v.  Reg., 

7  Can.  Sup.  Ct.  570;  Reg.  v. 
Stars  et  al.,  Can.  Sup.  Ct.  118; 
Baltimore  Cemetery  Co.  v.  Co- 
burn,  7  Maryland,  202 ;  Stuart 
v.     City    of     Cambridge,     125 
Mass.  102;  Mclntosh  v.  Hast- 
ings,   156   Mass.   344;    Day  v. 
Pickens    Co.,    53    S.    C.    46; 
Dodge  v.  McDonnell,  14  Wis. 
SS3J    Wagner   Co.   v.   Cawker, 
1 12  Wis.  532 ;  Fontano  v.  Rob- 
bins,  22  App.  Cas.  (D.  C.)  253; 
Sharpe  v.  San  Paulo,  etc.,  Co., 
27  L.  T.  Rep.  N.  S.  699,  L.  R. 

8  Ch.    App.   605    (notes),   af- 
firmed  in   L.    R.   8   Ch.   App. 
597;  Rex.  v.  Peto,  i  Young  & 
Jarvis  37;  Cooper  v.  Langdon, 

9  Meeson  &  Welsby  60;  Hud- 
son   Bldg.    Contracts,    vol.    I, 
sec.  3 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        19 

and  was  in  addition  to  the  work  outlined  in  the 
plans  and  specifications.  When  the  house  was 
nearing  completion,  the  builder  furnished  the  de- 
fendant with  a  written  statement  of  the  extra 
work  and  material  and  the  defendant  at  that  time 
made  no  objection  to  it,  although  it  does  not  ap- 
pear that  he  ratified  it.  It  appeared  also  that  at 
the  time  when  the  builder  gave  the  defendant  the 
written  notice  referred  to,  the  extra  work  had 
been  actually  performed  upon  and  the  materials 
had  been  actually  used  in  the  construction  of  the 
building  and  become  a  part  thereof,  and  could  not 
be  withdrawn.  Subsequently,  other  extras  were 
ordered  by  the  architect  and  furnished  by  the 
builder.  It  did  not  appear  that  at  the  time  when 
the  builder  rendered  his  first  bill  for  extras,  he 
suggested  to  the  defendant  the  possibility  of  more 
extras  being  needed  or  indeed  that  any  thought 
was  given  to  this  point  by  either  of  the  parties. 
The  Court  below  gave  judgment  for  the  plaintiff 
and  the  defendant  appealed.  The  higher  court 
reversed  the  judgment,  holding: 

"The  contract  sets  forth  the  extent  of  Easton's  agency 
for  the  defendant;  he  is  only  to  see  that  the  materials 
and  workmanship  are  in  accordance  with  the  specifica- 
tions. There  remained  no  opportunity  to  Smith  to  ex- 
tend that  power  by  inference,  and  when  he  furnished 
materials  for  or  performed  labor  upon  the  house  in  ex- 
cess of  the  specifications  upon  the  order  of  Easton,  he 
assumed  the  risk  of  ratification  by  the  defendant. 

Nor  is  the  defendant  estopped  from  insisting  upon  this 
contract  limitation  upon  Easton  by  the  fact  that  when 


20          LAW  OF  ARCHITECTURE  AND  BUILDING 

the  house  was  nearly  completed  he  received  in  silence  a 
statement  of  work,  and  materials  not  specified  in  the 
written  contract,  which  included  some  which  he  had  not 
ordered ;  for  these  had  been  wrought  into  the  building 
and  were  then  beyond  possibility  of  withdrawal  by  Smith, 
however  strongly  the  defendant  might  have  protested 
against  payment  for  them.  It  is  very  clear  therefore, 
that,  as  to  these  extras,  Smith  was  not  led  into  any  ac- 
tion resulting  in  loss  to  him  by  the  failure  of  the  defend- 
ant to  make  the  objection. 

But  it  is  said  that  other  extras  were  afterwards  or- 
dered by  Easton  and  furnished  by  Smith,  and  that,  what- 
ever might  be  the  effect  of  the  defendant's  silence  upon 
the  extras  already  furnished,  he  ought  to  be  regarded, 
by  reason  thereof,  as  authorizing  the  extras  afterwards 
ordered.  But  it  does  not  appear  that  Smith  at  that  time 
suggested  to  him  that  there  might  be  other  extras  or- 
dered by  Easton,  or  that  the  matter  was  thought  of  by 
either  of  them.  Besides  the  question  whether  the  de- 
fendant intended  to  influence  the  future  action  of  Smith, 
or  was  guilty  of  such  gross  negligence  that  he  could  be 
chargeable  with  that  intention,  and  the  further  question 
whether  Smith  was  influenced  by  his  conduct,  were  both 
questions  of  fact  and  not  of  law,  and  it  is  impossible  for 
us  to  find  these  facts  when  the  court  below  has  failed  to 
do  so."  7 

In  another  leading  case  in  Massachusetts,  the 
plaintiffs  offered  to  show  that  they  did  the  certain 
work  for  the  value  of  which  the  suit  was  brought 
under  the  direction  of  the  defendant's  agent,  the 
architect;  that  they  stated  to  the  latter  that  the 
work  was  not  included  in  their  contract  and  that 
he  told  them  "to  go  ahead  and  do  the  work  as  he 
directed  and  they  would  be  paid  for  it."  The 
Court  excluded  this  evidence,  holding  that 

7  Starkweather  v.  Goodman,  48  Conn.  101. 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        21 

"the  written  contract  carefully  provides  that  any  addi- 
tions to  or  deviations  from  the  plans  or  specifications  shall 
be  directed  in  writing  by  the  committee  or  architect,  and 
that  'it  is  expressly  agreed  that  no  alterations  or  additions 
are  to  be  paid  for  unless  so  directed  in  writing.'  No  evi- 
dence was  offered  of  any  waiver  of  this  provision  by  the 
defendant,  or  of  any  authority  in  the  architect  to  waive  it. 
This  clause  was  intended  to  protect  the  defendant  against 
claims  for  extra  work  under  alleged  oral  directions  or 
contracts.  If  the  evidence  offered  can  be  construed  to 
show  an  oral  promise  by  the  architect,  founded  upon  a 
sufficient  consideration,  to  pay  for  the  work  sued  for  as 
extra  work,  it  was  made  without  authority,  and  is  not 
binding  upon  the  defendant."  8 

The  same  rule  has  been  applied,  and  vigorously, 
in  New  York  State.  In  one  instance,  a  building 
contract  provided  in  the  specifications  that  Kings 
Winsor  cement  should  be  used  and  the  work  car- 
ried out  under  the  direction  of  a  certain  superin- 
tendent. Elsewhere  in  the  specifications  it  was 
provided  that  the  cement  should  be  mixed  "with 
equal  parts  good  sharp  and  dry  sand."  There 
was  also  a  provision  that  in  the  event  that  any  dis- 
pute should  arise  respecting  the  true  construction 
of  the  specifications,  the  matter  should  be  decided 
by  the  architect,  "whose  decision  shall  be  final  and 
conclusive."  The  plaintiff,  a  subcontractor  for 
the  plastering  work,  filed  a  mechanic's  lien  for  his 
services  and  materials,  and  brought  an  action  to 
foreclose  the  same.  On  the  trial  of  the  action,  it 
appeared  that  the  cement  mixture  used  was  two 
parts  sand  and  one  part  cement.  The  plaintiff 

•  Stuart  v.  Cambridge,  125  Mass.  102. 


22         LAW  OF  ARCHITECTURE  AND  BUILDING 

testified  that  the  variation  from  the  specifications 
in  the  preparation  of  the  mixture  was  in  accord- 
ance with  the  direction  of  the  superintendent.  A 
letter  was  also  introduced  which  the  architect  had 
written  to  the  plaintiff,  in  which  he  stated  that  the 
plaintiff  was  not  doing  the  work  in  accordance 
with  the  contract  and  was  not  following  the  in- 
structions of  the  superintendent,  and  in  which  he 
directed  him  to  follow  those  instructions  "to  the 
letter."  The  Court  below  dismissed  plaintiff's 
complaint  and  the  Court  of  Appeals  by  Chief 
Justice  Andrews  affirmed  the  judgment  below  in 
the  following  language : 

"There  is  some  evidence  tending  to  show  that  the  varia- 
tion from  the  specifications  in  the  proportions  of  sand 
and  cement  was  directed  by  the  superintendent  of  King 
&  Company,  but  it  is  plain  that  the  provision  that  the 
plastering  should  be  done  under  the  direction  of  the  su- 
perintendent of  King  &  Company  had  relation  to  the 
manner  of  applying  the  plaster,  and  gave  him  no  author- 
ity to  change  the  component  parts  of  the  mixture  spe- 
cifically prescribed.  ...  It  is  difficult  to  see  how  a  letter 
complaining  of  the  work  as  not  complying  with  the  con- 
tract could  be  construed  as  an  authority  to  follow  the 
instructions  of  the  superintendent  of  King  &  Co.,  in  re- 
spect of  a  matter  fixed  by  the  specifications  and  a  de- 
parture from  which  in  reducing  the  proportion  of  cement 
would  not  be  of  advantage  to  the  owner  of  the  building."  9 

In  another  New  York  case  the  plaintiff  brought 
action  to  recover  for  work  done  and  materials 
furnished  in  a  building  constructed  by  the  de- 
fendants, under  the  direction  of  their  architects. 

9  Fitzgerald  v.  Moran  et  al.,  141  N.  Y.  419. 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        23 

The  question  arose  whether  the  architects  had 
made,  or  had  in  any  case  a  right  to  make,  with 
the  plaintiff,  a  new  contract  relative  to  the  work 
and  binding  upon  the  defendants.  It  appeared 
that  the  architects  were  employed  by  the  defend- 
ants to  prepare  the  plans  and  specifications,  to 
secure  estimates,  and  to  superintend  the  erection 
of  the  building. 

The  Court  held  that  "the  employment  as  archi- 
tects to  superintend  the  building  and  see  that  the 
persons  with  whom  the  defendants  had  contracted 
performed  their  contracts  would  not  give  the  ar- 
chitects authority  to  make  new  contracts."  10 

§  ii.  Other  Limitations  on  General  Agency. — 
In  the  absence  of  provisions  giving  to  him  specific 
authority  so  to  do,  the  architect  can  not  employ  a 
new  contractor  to  do  work  already  undertaken  by 
the  contractor  originally  chosen,11  nor  can  he  sub- 
stitute, either  as  respects  the  performance  of  the 
work  or  the  payment  therefor,  a  subcontractor 
for  the  principal  contractor,  nor  does  the  mere 
fact  that  the  owner  happens  to  see  the  work  being 
done  by  the  subcontractor  serve  to  make  the 
owner  liable;  for,  in  the  absence  of  special  cir- 
cumstances, it  will  be  presumed  that  the  owner 
has  the  right  to  suppose  that  the  work  is  being 
done  for  the  principal  contractor.12  • 

10  The     Fireproof     Building  "Campbell   v.   Day,   go  111. 
Co.     v.     The     First     National  363 ;  Bouton  v.  Supervisors  of 
Bank,  et  al.,  54  N.  Y.   Super.  McDonough     County,    84    111. 
Court,  511.  384,— but  note   that   this   is   a 

11  Campbell   v.    Day,   90   111.  case  of  public  rather  than  of 
363.  private  agency. 


24         LAW  OF  ARCHITECTURE  AND  BUILDING 

So,  in  the  case  of  a  public  corporation  at  least, 
certificates  cannot  be  given  to  subcontractors,13 
and  neither  certificates  nor  orders  issued  must 
vary  from  the  form  specified  in  the  contract, — if 
a  form  be  specified.14  Similarly,  when  the  archi- 
tect is,  either  orally  or  by  the  terms  of  the  written 
contract,  given  authority  to  certify  extras  and 
authorize  alterations,  the  client  will  not  be  held 
liable  unless  the  architect  complies  with  and  keeps 
strictly  within  the  terms  of  the  authority  con- 
ferred.15 

Just  as  the  architect  has  no  right  in  the  absence 
of  express  authority  to  order  extras  or  altera- 
tions, so  too,  in  the  absence  of  such  express  au- 
thority, he  has  no  right  to  allow  the  contractor  to 
vary  from  the  terms  of  the  contract  either  as  re- 
spects materials  or  construction,  or  as  to  any  of 
its  substantial  details  or  provisions,  nor  to  allow 
any  detail  of  construction  or  material  to  remain 
which  is  contrary  to  the  contract  terms  and  pro- 
visions.16 It  has  been  held  also  that  the  architect 
has  no  general  authority  to  exercise  a  supervision 

18  Bouton     v.      McDonough  162;  Burke  v.  City  of  Kansas,  34 

County,  84  111.  384.  Mo.  App.  570;  Starkweather  v. 

14  Mills  v.  Weeks,  21  111.  561.  Goodman,  48  Conn.  101;  Stuart 

"Ahern  v.  Boyce,  19  Mo.  v.  City  of  Cambridge,  125 
App.  552;  Woodruff  v.  Roch-  Mass.  102;  Cooper  v.  Lang- 
ester,  etc.,  R.  Co.,  108  N.  Y.  don,  9  M.  &  W.  (Messon  & 
39;  Commune  de  Calombier.  Welsby),  60;  Bond  v.  The 
Saugnieu  v.  Duchez  et  Sa-  Mayor,  etc.,  19  N.  J.  Eq.  376; 
voye.  Dalloz  Jurisprudence  Clark  on  Architects,  p.  87; 
Generate,  1883,  part  3,  p.  92.  Wagner  Co.  v.  Cawker,  112 

16Glacius  et  al.  v.  Black,  50  Wis.    532;    Hudson,    Building 

N.   Y.    145 ;   Bonesteel  v.   The  Contracts,  vol.  I,  §  3,  p.  16. 
Mayor,  etc.,  of  N.  Y.,  22  N.  Y. 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        25 

over  the  letting  of  subcontracts  or  the  employ- 
ment of  workmen,17  nor  yet  to  receive  a  notice  of 
the  assignment  of  the  building  contract  so  as  to 
bind  the  owner.18 

§  12.  Special  Agency — To  Be  Carefully  Exer- 
cised.— It  must  be  understood  that  all  of  the  limi- 
tations on  the  powers  and  authority  of  the  archi- 
tect, referred  to,  are  limitations  upon  his  powers 
and  authority  under  his  general  agency,  and  that 
if,  orally  or  in  writing,  he  be  authorized  to  exer- 
cise a  special  authority,  or  be  appointed  broadly 
the  general  agent  of  his  employer  as  to  all  matters 
relating  to  the  contract  or  building,  his  authority 
will  be  enlarged  accordingly.  Thus,  for  instance, 
he  may  be  given,  specifically,  full  discretion  and 
authority  to  pass  upon  and  order  extras  or  altera- 
tions, or  accept  work  of  a  different  character  than 
that  specified,  or  to  change  contractors,  or  to  vary 
the  terms  of  the  contract  between  his  employer 
and  the  contractor  in  such  details  as  he  may  think 
best.  If  he  be  given  such  special  discretion  and 
authority,  he  will  be  justified  in  exercising  it 
accordingly.  He  cannot,  however,  be  too  careful 
to  ascertain  before  he  acts  the  exact  extent  and 
scope  of  his  authority,  for  it  often  happens  that 
provisions  delegating  to  him  special  authority  and 
which  he  may  consider  justify  him  in  assuming 
certain  authority,  are  legally  to  be  construed  as  so 
limited  by  the  other  general  conditions  of  the  con- 
tract, or  by  the  rules  of  agency,  as  to  make  his 

17  Lewis    v.    Slack,   27    Mo.         18Renton    v.    Monniere,    77 
App.  119.  Cal.  449. 


26          LAW  OF  ARCHITECTURE  AND  BUILDING 

actual  authority  and  discretion  much  less  than  he 
supposes  it  to  be. 

Thus  a  provision  giving  to  the  architect  the 
power  to  make  changes  in  plans  or  specifications, 
has  been  held  not  to  contemplate  or  authorize  any 
radical  changes  from  the  plans  or  specifications, 
but  only  such  incidental  changes  as  may  fairly  be 
considered  to  be  necessary  to  complete  the  work, 
in  accordance  with  the  general  intentions  of  the 
parties.  And  where  a  contract  provided  that  a 
dam  to  be  constructed  was  "to  be  built  of  ma- 
sonry" and  then  provided  that  the  engineer  in 
charge  could  "make  alterations  in  the  line,  grade, 
plans,  form,  position,  dimensions,  or  materials," 
it  was  held  that  the  authority  was  insufficient  to 
authorize  the  engineer  to  change  the  dam  from 
one  of  masonry  to  an  earthen  dam  with  a  masonry 
core.19 

§  13.  Estoppel  of  Owner. — It  must  not  be  sup- 
posed that  the  owner  can,  under  any  and  all  cir- 
cumstances, when  the  architect  has  exceeded  the 
limits  of  his  agency  powers,  escape  responsibility 
if  by  his  conduct  he  has  impliedly  ratified  his 
agent's  acts,  or  so  acted  himself  as  to  cause  others 
to  reasonably  suppose  that  the  acts  of  the  agent 
were  with  his  approval,  and  so  estopped  himself 
from  claiming,  certainly  as  to  third  parties,  that 
the  acts  were  in  reality  without  his  sanction  or 
authority.  So,  where  alterations  are  ordered  by 
the  architect  in  the  presence  of  the  owner,  who 

18  The  National  Contracting  Co.  v.  Hudson  River  Water  Power 
Co.,  192  N.  Y.  209. 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        27 

does  not  then  demur  or  question  them,  the  author- 
ity of  the  architect  to  order  such  alterations  is  pre- 
sumed, and  this  even  though  in  the  contract  it  be 
provided  that  any  orders  for  alterations  must  be 
in  writing.20  Similarly  if  the  architect,  during 
the  progress  of  the  work,  has  made  repeated 
changes  in  the  plans  which  the  owner  has  ratified 
and  approved,  and  the  architect  makes  further  ex- 
tensive changes  and  alterations,  the  contractor  is 
justified,  by  the  actions  of  the  owner,  in  depending 
on  the  architect's  authority  as  to  these  final 
changes  and  alterations  and  the  owner,  who  has 
received  the  benefit  thereof,  cannot  successfully 
defend  an  action  by  the  contractor,  on  the 
ground  that  the  architect  has  exceeded  his 
authority.21 

The  architect  in  his  capacity  as  superintendent, 
may  be  considered  the  agent  of  the  owner  within 
the  scope  of  his  authority,22  but  he  is  the  agent  of 
the  owner  for  the  purposes  only  of  the  contract 
in  connection  with  which  he  is  employed.23 

§  14.  Delegation  of  Powers — The  General 
Rule. — As  in  the  case  of  an  attorney  or  special 
trustee,  so  in  the  case  of  an  architect,  his  employ- 
ment is  based  upon  personal  trust,  and  upon  confi- 
dence in  his  honesty,  ability  and  skill.  He  cannot 

20  Perry  v.  Levenson,  82  N.          22  Vanderhoof    v.    Shell,    42- 
Y.  A.  D.  94;  affirmed,  without  Oregon     578;    Brin     v.     Mc- 
opinion,   178  N.   Y.  559.  Gregor  (Tex.  Civ.  App.  1898) 

21  Jackson  Architectural  Iron  45  S.  W.  923;  Kilgore  v.  North- 
Works  v.  Rouss,  39  St.  Rep.  west    Texas     Baptist    Educa- 
359,  15  N.  Y.  Supp.  137— judg-  tional   Society,  89  Tex.  465. 
ment  affirmed  without  opinion,          2S  Richard  v.  Clark,  43  Misc. 
133  N.  Y.  538.  (N.  Y.)  622. 


28          LAW  OF  ARCHITECTURE  AND  BUILDING 

therefore,  without  express  authority  or  permis- 
sion so  to  do,  delegate  his  authority  to  another. 
This  is  in  accordance  with  the  old  agency  maxims 
of  delegatus  non  potest  delegare  and  delegata  po- 
testas  non  potest  delegare.  In  one  State  at  least 
these  have  been  so  strictly  applied  as  to  forbid  the 
architect  from  delegating  his  authority  as  arbi- 
trator to  his  partner  without  the  consent  of  his 
employers.24 

§  15.  Limitation  of  Rule. — When  a  firm  is  em- 
ployed, as  a  firm,  and  dependence  is  not  placed 
specially  upon  one  member  of  the  firm,  the  fore- 
going rule  would  not  apply,  and  where  an  archi- 
tect's partner  has  been  in  charge  of  the  work  and 
has  been  recognized  by  both  the  owner  and  the 
contractor  as  being  so  in  charge,  he  can  by  signing 
an  arbitration  provided  for  in  the  contract  bind 
both  parties,  although  his  individual  name  does 
not  appear  in  the  firm  title  and  is  not  mentioned  in 
the  contract.25  In  any  event  if  the  parties  mu- 
tually consent  there  can  be  no  objection  to  the  ar- 
chitect delegating  his  authority  to  another,  and, 
of  course,  the  parties  themselves  may  waive  con- 
ditions in  the  contract  which,  without  express  au- 
thority, the  architect  could  not  waive.26 

24  Wright    v.    Meyer    (Tex.  McPherson    v.    Rockwell,    37 
Civ.  App.  1894),  25  S.  W.  Rep.  Wis.    159;    Boden    v.    Maher, 
1 122.  105  Wis.  539;  Wambald  et  al. 

25  Wymard  v.  Deeds,  21  Pa.  v.     Gehring,     109    Wis.     122 ; 
Super.  Ct.  332.  Page    on     Contracts,     §  1468; 

26  Smith  v.  Molleson,  148  N.  Weatherhogg  v.  Board  of  Com- 
Y.  241 ;  Wagner  Co.  v.  Cawker,  missioners    of   Jasper   County, 
112    Wis.    532;    Bannister    v.  158  Ind.  14. 

Patty's    Exec's,   35    Wis.   215; 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        29 

The  rule  delegata  potestas  non  potest  delegare 
must  not  be  taken  as  meaning  that  there  are  no 
details  of  the  work  which  an  architect  can  prop- 
erly delegate  to  others,  for  it  is  manifest  that  it 
would  be  impossible,  as  a  modern  architect's  office 
is  conducted,  for  the  architect  to  personally  attend 
to  every  detail,  no  matter  how  slight  or  trivial. 
There  are  many  duties,  of  a  more  or  less  minis- 
terial and  clerical  character,  which  can  and  indeed 
must  be  delegated,  if  the  work  is  to  be  carried  for- 
ward with  despatch,  and  without  undue  interfer- 
ence with  other  work  in  hand.  The  general  rule  is 
well  stated  in  an  early  English  decision  where  it  is 
said  that  "Where  a  man  employs  an  agent  relying 
upon  his  peculiar  aptitude  for  the  work  intrusted 
to  him,  it  is  not  competent  to  that  person  to  dele- 
gate the  trust  to  another.  But,  where  the  act  to 
be  done  is  of  such  a  nature  that  it  is  perfectly  in- 
different whether  it  is  done  by  A  or  by  B,  and  the 
person  originally  intrusted  remains  liable  to  the 
principal  by  whomsoever  the  thing  may  be  done, 
the  maxim  above  referred  to  (delegata  potestas 
non  potest  delegare)  has  no  application."  2T  In 
another  and  comparatively  recent  English  case,  in 
which  the  decision  of  the  Master  of  the  Rolls  was 
upheld,  the  statement  of  facts  and  decision  are  in 
point :  "By  the  terms  of  the  contract  the  architect 
could  order  the  removal  of  any  materials  used  in 
the  building  that  appealed  to  him  as  not  up  to  the 
specified  quality.  What  the  architect  actually  did 

2T  Hemming  v.  Hale  et  al.,  7  C.  B.  N.  S.  (Common  Bench,  New 
Series)  487. 


30          LAW  OF  ARCHITECTURE  AND  BUILDING 

was  to  examine  the  wood  on  the  ground,  and,  find- 
ing that  it  was  not  of  the  required  quality,  he  di- 
rected the  clerk  of  the  works  to  mark  the  timbers 
already  put  in  the  roof  of  the  sorting  house  to 
which  he  objected.  Upon  that  gentleman's  re- 
port, the  architect  framed  his  certificate,  and  the 
question  was  whether  in  these  circumstances  the 
architect  could  be  said  to  have  adjudicated  on 
the  matter.  It  was  perfectly  obvious  as  a  matter 
of  business  that  one  could  not  expect  an  architect 
to  go  into  every  detail  himself  and  he  (the  Master 
of  the  Rolls)  had  no  hesitation  in  holding  on  the 
authorities  that  the  architect,  having  himself  first 
ascertained  that  the  timber  being  used  was  not  of 
the  stipulated  quality,  was  perfectly  entitled  to 
delegate  the  duty  of  particularizing  which  of  the 
timbers  had  to  be  removed."  28 

§  1 6.  Due  Care  Required  in  Delegation  of  Au- 
thority.— In  delegating  his  authority  the  architect 
should  be  careful  to  delegate  it  to  one  in  whom  he 
can  reasonably  feel  entire  confidence  as  by  placing 
more  than  a  reasonable  amount  of  confidence  in 
the  clerk  to  whom  the  authority  is  delegated  he 
would,  by  reason  of  his  negligence  in  so  doing, 
render  himself  liable  for  any  damages  occasioned 
the  owner  by  reason  of  the  incapacity  of,  or  im- 
proper performance  of  his  duties  by,  the  clerk.29 
The  architect  must  remember  that  it  is  always  he 

28  A.    M.   Brice  "The  Legal  Builder,  Nov.  15,  1902,  p.  456. 

Authority  of  the  Architect  as  29A.  M.  Brice,  supra,  citing 

an  Agent,"  quoting  Graham  v.  Lee  v.  Lord  Bateman.  Times, 

The  Commissioner  of  Works,  October  31,   1893. 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        31 

himself  who  is  the  agent  of  his  client  and  that 
while  he  may  delegate  such  details  as  it  is  proper 
and  reasonable  that  he  should,  the  responsibility 
remains  his  and  the  owner  has  the  right  to  look  to 
him  and  to  him  alone  for  the  proper  performance 
of  his  duties  as  architect. 

§  17.  Power  to  Act  in  Emergencies. — The 
question  often  arises  whether,  under  circum- 
stances of  sudden  necessity  or  exigency,  the  archi- 
tect may  order  extra  work  to  be  done  or  steps 
taken,  under  the  powers  conferred  upon  him  in 
the  ordinary  case.  If  a  beam  break,  for  instance, 
is  the  architect  authorized  to  have  emergency 
measures  taken,  at  once,  and  without  consultation 
with  the  owner,  for  the  safety  of  the  other  details 
of  the  work  and  of  the  building? 

It  has  been  stated  that  whether  an  agency  "is 
conferred  in  the  one  way  or  the  other  (viz., 
orally,  or  in  writing),  it  is,  unless  the  contrary 
manifestly  appears  to  be  the  intent  of  the  party, 
always  construed  to  include  all  the  necessary  and 
usual  means  of  executing  it  with  effect/' 30  And 
in  a  leading  case  in  New  York  State,  the  rule  is 
held  to  be  that  "whatever  may  be  necessary  to 
complete  an  act  an  agent  is  authorized  to  perform 
is  included  within  the  authority  of  the  agent."  31 
Following  this  rule  and  the  rule  that  an  architect 
has  authority  to  proceed  in  the  usual  way,32  it  has 

80  Story  on  Agency,  9th  ed.,  82  Moon  v.  Guardians  of  the 
§58,  page  71.  Poor,    3    Bingham's    N.    Cas., 

81  Robinson     v.     Springfield  814. 
Iron  Co.,  39  Hun  (N.  Y.)  634. 


32          LAW  OF  ARCHITECTURE  AND  BUILDING 

been  stated  that  an  architect  is  able  in  an  emer- 
gency and  unforeseen  circumstances,  to  bind  his 
employer  for  extra  work  and  materials  and  to 
disregard  the  letter  of  the  original  agreement 
where  such  extra  work  and  materials,  although  a 
variance  from  the  terms  of  the  agreement,  are, 
nevertheless,  necessary  to  secure  the  safety  and 
the  security  of  the  building.33 

It  does  not  seem  safe,  however,  to  accept  this  as 
the  approved  general  rule.  The  Indiana  case  of 
Gibson  County  v.  Matherwell,  etc.,  Co.,  referred 
to  by  Mr.  Clark,  as  above  noted,  is  itself  decided 
on  a  state  of  facts  showing  that  the  building  was 
accepted  by  the  owner,  and  in  both  this  and  other 
respects  does  not  seem  to  justify  the  broad  doc- 
trine for  which  it  has  been  cited,  and  there  are 
varying  views  in  most  respectable  jurisdictions.34 

While  the  courts  may  be  inclined  to  stretch  a 
point  here  and  there  to  relieve  the  architect  where 
he  has  acted,  probably  for  the  best,  under  circum- 
stances of  sudden  necessity,  they  recognize,  never- 
theless, the  danger  of  any  general  opening  of  the 
door,  to  an  extent  which  might  be  taken  advan- 
tage of  to  unduly  broaden  the  rules  which  ex- 
perience has  shown  it  to  be  wise  to  adopt  in  limita- 
tion of  the  implied  powers  and  authority  of  an 
agent. 

§  1 8.  Dangers  of  Implied  Authority. — An 
architect  in  ordering  extras  or  alterations  or  ad- 

33  Clark  on  Architects,  p.  82,  84  Stuart  v.   Cambridge,   125 

citing  Gibson  County  v.  Math-  Mass.    102;    compare   Art.    18, 

erwell  Iron,  etc.,  Co.,  123  Ind.  general    conditions,    Appendix 

364-  B,  p.  230. 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        33 

ditions,  by  reason  of  the  very  fact  of  his  employ- 
ment as  the  agent  of  the  owner,  must,  in  many 
cases,  impliedly  represent  himself  as  having  au- 
thority to  authorize  the  extras  and  changes  di- 
rected, and,  as  it  has  long  been  recognized  that 
an  architect  falsely  representing  himself  as  hav- 
ing authority  to  bind  his  principal  for  work  and 
materials  incurs  a  personal  liability  therefor,35 
it  is  apparent  that,  with  the  best  of  intentions, 
the  architect  may,  by  a  little  excess  of  zeal  or 
lack  of  care  on  his  part,  incur  a  loss  far  exceeding 
any  possible  compensation  received  by  him  from 
the  work  in  hand.  So,  in  the  case  of  extras,  he 
has  no  implied  authority  to  authorize  as  extras 
work  which  should  have  been  included  or  shown 
in  his  own  specifications  or  drawings,  nor  work 
which,  while  not  specified,  is  absolutely  essential 
to  the  completion  of  the  contract  and  for  which 
it  should  have  been  the  duty  of  the  builder  to 
make  allowance  in  his  estimate,  knowing  it  to  be 
essential ;  nor  yet,  may  he,  where  his  drawings  are 
not  practicable,  order  as  extras  the  work  neces- 
sary to  make  them  practicable.36 

§  19.  General  Precautionary  Suggestions. — 
There  is  but  one  way  in  which  the  architect  can 
properly  protect  himself  from  the  danger  of  in- 
curring personal  liability  under  one  or  another 
phase  of  his  position  as  the  agent  of  his  client, 
and  that  is  to  exercise  the  utmost  care  not  to  ex- 

8BRandell  et  al.  v.  Trimen,  »«"A.  M.  Brice,  "The  Legal 
18  C.  B.  (Common  Bench)  Authority  of  the  Architect  as 
786.  an  Agent." 


34         LAW  OF  ARCHITECTURE  AND  BUILDING 

ceed  the  express  or  implied  authority  which  he 
knows  himself  to  possess ;  not  to  act  on  any  point 
where  there  is  the  slightest  doubt  of  his  full  au- 
thority to  act,  without  securing  that  authority; 
to  take  nothing  for  granted,  but  to  be  guided  by 
the  contract  and  by  the  authority  which,  orally  or 
in  writing,  he  has  received ;  to  refuse  to  take  the 
chance  that  the  owner  will  ratify  what  has  been 
done,  where  it  is  possible  to  in  any  way  communi- 
cate with  the  owner  and  secure  his  approval  and 
assent ;  and  wherever  a  point  of  ambiguity  or  un- 
certainty arises,  to  ascertain,  before  acting,  just 
what  construction,  legally,  is  to  be  placed  upon 
the  provisions  by  which  his  authority  and  liability 
are  specified,  governed  and  determined. 

It  may  well  be  that,  as  a  practical  matter,  in 
many  cases,  a  quick  decision  will  be  necessary  and 
that  it  will  be  impossible  to  secure  the  approval  of 
the  client  in  advance,  but  so  far  as  possible,  noth- 
ing should  be  taken  for  granted  or  assumed  on  the 
point  of  agency  if  the  architect  would  avoid  com- 
plications and  personal  loss.  If  the  contract  or 
understanding  under  which  he  is  acting  does  not 
clearly  confer  upon  him  such  authority,  express 
or  implied,  as  a  particular  development  may  neces- 
sitate, let  him,  before  acting,  secure  that  authority 
if  this  be  a  possibility,  in  writing  if  practicable,  if 
not,  orally,  in  person  or  by  telephone,  in  some 
form  in  any  event.  Only  by  doing  this  will  he 
be  protected,  and  only  thus  will  he  avoid  the  dan- 
ger of  suffering  sooner  or  later,  and,  in  all  likeli- 
hood sooner  rather  than  later,  a  loss  which  will 


THE  ARCHITECT  AS  AGENT  OF  THE  OWNER        35 

more  than  counterbalance  any  advantages  which 
he  may  have  secured  by  taking  chances  in  the 
past  and  by  trusting  merely  to  the  sense  of  fair- 
ness of  those  employing  him  to  save  him  harmless. 
And  let  him  always,  under  any  circumstances,  be 
very  critical  of  any  authority  which  is  by  implica- 
tion rather  than  express,  even  though  the  implica- 
tion seem  to  his  mind  entirely  clear  and  inevitable. 


CHAPTER  III 

THE  COMPENSATION  OF  THE 
ARCHITECT 

§  20.  Introductory. — The  right  of  the  archi- 
tect to  receive  compensation  for  his  work  is  nat- 
urally a  matter  of  prime  importance  to  him.  If 
he  is  to  be  in  a  position  to  properly  protect  his 
rights  in  this  connection,  and  at  the  same  time 
avoid  unnecessary  and  expensive  misunderstand- 
ing and  possible  litigation,  he  should  understand 
the  theory  upon  which  his  right  to  compensa- 
tion is  based  and  the  circumstances  under  which 
he  may  or  may  not  rightfully  demand  and  re- 
cover compensation  for  services  rendered. 

Matters  which,  to  the  lay  mind,  may  seem  of 
little  or  no  importance  may,  in  fact,  prove  to  be 
determining  factors  in  deciding  whether  or  not 
the  claim  of  the  architect  for  compensation  is 
valid  and  enforcible.  A  very  few  words  or  a 
very  simple  writing  at  the  proper  time  may  make 
his  right  to  compensation  entirely  clear,  while 
a  failure  to  speak  the  words  or  to  secure  the 
writing  may  mean  that,  after  the  work  of  the 
architect  has  been  done,  some  technical  or  other 
objection  may  be  successfully  urged  as  a  bar  to 
his  recovery. 

It  is  no  less  desirable  that  the  owner  shall  un- 
36 


THE  COMPENSATION  OF  THE  ARCHITECT        37 

derstand  the  terms  and  effect  of  his  contract  with 
the  architect  and  the  rules  governing  his  own  lia- 
bility to  reimburse  the  latter  for  services  ren- 
dered. 

§  21.  Theory  of  Recovery — Contract  and 
Quantum  Meruit. — The  recovery,  by  an  architect 
for  services  rendered  may  be  based  either  upon 
the  theory  of  direct  contract  or  upon  the  theory 
of  what  is  known  in  the  law  as  quantum  meruit. 
If  based  upon  the  contract,  the  recovery  is  for 
the  specified  amount  which  by  the  terms  of  the 
contract  the  owner  has  agreed  to  pay  the  archi- 
tect as  his  fee.  If  based  upon  quantum  meruit 
the  recovery  is  not  upon  the  theory  of  a  definite 
contract  price,  but  for  the  reasonable  value  of 
the  work  done  and  services  rendered.  In  the  ordi- 
nary case  of  a  suit  for  goods  sold  and  delivered, 
for  instance,  the  recovery  may  be  for  a  certain 
number  of  yards  of  goods  at  an  agreed  price,  of, 
say,  one  dollar  a  yard,  or,  if  no  price  has  been 
agreed  upon,  and  the  goods  have  been  delivered 
and  accepted  by  the  defendant,  the  recovery  may 
be  for  the  reasonable  value  of  the  goods  delivered, 
which  may  be  a  dollar  a  yard,  or  more  or  less. 
So,  in  the  case  of  personal  services  rendered,  if  a 
definite  commission  or  rate  of  compensation  has 
been  agreed  upon,  the  recovery  will  be  in  accord- 
ance with  the  commission  and  rate  thus  estab- 
lished. If  there  has  been  no  such  definite  agree- 
ment the  recovery  will  be  for  such  amount  as  will 
represent  the  reasonable  value  of  the  services  ren- 
dered. 


38         LAW  OF  ARCHITECTURE  AND  BUILDING 

It  will  be  seen  that  there  is  a  vast  difference 
between  these  two  theories  of  recovery.  In  the 
case  of  a  definite  contract  the  architect  need  not 
prove  that  the  services  are  reasonably  worth  the 
amount  claimed — all  that  he  need  prove  is  that 
the  client  agreed  to  pay  him  a  certain  sum  in  com- 
pensation for  his  services,  that  the  services  have 
been  performed  and  that  the  agreed  compensa- 
tion has  not  been  paid  and  is  due  accordingly. 
If  he  cannot  prove  such  definite  agreement  then 
it  is  that  he  must  fall  back  upon  the  quantum 
meruit  count  and  ask  compensation  for  the  rea- 
sonable value  of  his  services.  If  there  has  been  a 
definite  contract  the  fee  agreed  upon  is,  of  course, 
just  as  controlling  upon  one  of  the  parties  as  upon 
the  other;  that  is,  the  architect,  if  he  agree  to 
serve  for  an  agreed  compensation  cannot  claim 
more,  on  the  theory  that  the  services  are  worth 
more,  and,  disregarding  the  existence  of  the  con- 
tract, elect  to  recover  on  quantum  meruit  instead ; 
and,  similarly,  the  client  cannot,  under  these  cir- 
cumstances, pay  less  than  the  amount  agreed, 
where  the  services  have  been  duly  performed  in 
accordance  with  the  terms  of  the  contract.  If 
there  be  no  contract  a  recovery  may  be  had  for 
the  full  reasonable  value  of  the  services  rendered 
irrespective — except  in  so  far  as  this  may  be  con- 
sidered in  determining  the  reasonable  value— of 
whether  their  value  is  more  or  less  than  the 
amount  which  the  architect  might  have  been  will- 
ing to  accept,  if  a  definite  agreement  had  been 
entered  into. 


THE  COMPENSATION  OF  THE  ARCHITECT        39 

In  a  case  where  the  architect  and  owner  enter 
into  a  definite  contract  covering  the  amount  of 
the  compensation  to  be  paid,  and  the  contract  is 
performed  by  the  architect  and  the  building  is 
completed  in  the  ordinary  course  and  without  dif- 
ferences arising,  there  will  be  little  room  for  any 
complications  in  regard  to  the  architect's  fee. 
But  when  the  cases  are  reached  wherein  no  defi- 
nite contract  is  made,  and  preliminary  sketches 
are  prepared  with  no  statements  made  and  noth- 
ing said  in  regard  to  the  matter  of  compensation ; 
or,  where  special  conditions  regarding  the  char- 
acter of  the  building  or  its  cost  are  stipulated 
by  the  owner  as  terms  of  the  contract;  or  where 
plans  are  submitted  in  competition,  or  where,  after 
ordering  the  preparation  of  sketches  and  plans 
and  specifications,  the  owner  for  one  reason  or 
another  decides  not  to  proceed  with  the  contract, 
very  different  situations  are  presented — situa- 
tions which  in  their  very  nature  make  it  quite 
possible,  and  indeed  probable,  that  differences  of 
opinion  will  arise,  as  to  whether  any  fees  are  pay- 
able, and  if  so,  to  what  extent  they  are  payable 
and  in  what  amounts. 

§  22.  Recovery  in  Absence  of  Special  Condi- 
tions or  Agreement. — An  architect  is  no  more  an 
eleemosynary  institution  than  any  other  profes- 
sional or  business  man,  and,  in  general  and  in  the 
absence  of  such  other  circumstances  or  conditions 
as  are  noted  hereafter,  where  a  client  requests  an 
architect  to  prepare  and  furnish  plans  and  the 
latter  does  so,  he  is  entitled  to  be  paid  for  his 


40         LAW  OF  ARCHITECTURE  AND  BUILDING 

services.1  And  unless  at  the  time  the  order  for 
the  plans  is  given  and  the  work  on  them  is  done 
it  is  agreed  directly,  or  impliedly  from  what  is 
said,  that  they  are  submitted  on  approval,  or  on 
conditions  specified  as  to  their  acceptance,  the 
client,  by  requesting  their  preparation  and  by  re- 
ceiving them,  incurs  a  liability  to  pay  for  such  of 
them  as  may  be  completed  before  the  order  is 
countermanded,  and  this  entirely  irrespective  o£ 
whether  the  plans  are  ultimately  used  or  not.2 

§  23.  Effect  of  Specified  Conditions, — Where 
the  owner  gives  to  the  architect  specific  directions 
in  regard  to  the  character  of  the  plans  desired, 
the  architect  cannot  recover  unless  the  plans  are 
made  in  accordance  with  the  directions  received,3 
and  the  architect  will  at  once  imperil  his  right  to 
recover  for  his  services,  if  he  disregards  in  any 
way  any  conditions  which  the  client  may  have 
specified,  in  regard  to  the  work  to  be  done,  or  as 
terms  of  the  contract  between  them. 

§  24.  Conditions  Re  Cost. — There  is  no  point 
perhaps  in  the  question  of  compensation  which 
should  be  approached  more  carefully  by  the  archi- 
tect, or  which  will  more  often  be  taken  advantage 

1  Smithmeyer  v.  U.  S.,  25  Ct  court      below ;       Nelson      v. 
Cl.  481,  judgment  affirmed  147  Spooner,  2  F.  &  F.  613;  Kutts 
U.  S.  342;  Maas  v.  Hernandez,  v.     Pelby,    20    Pick.     (Mass.) 
48  La,  Ann,  264,  19  So.  269;  65;    Marcotte    v.    Beaupre,    15 
Canfield  (New  England  Monu-  Minn.    152;    Driscoll   v.    Inde- 
ment   Co.)    v.   Johnson   et  al.,  pendent     School     District,     61 
144  Pa.  St  61,  22  Atl.  974.  Iowa  426. 

2  Pierce  v.  Thurston,  40  App.  3  Smith  v.  Dickey,  74  Texas 
Div.    (N.    Y.)    577,   reversing  61,  II  S.  W.  1049. 


THE  COMPENSATION  OF  THE  ARCHITECT        41 

of  to  prevent  recovery  by  him  for  his  services, 
than  the  question  of  the  cost  of  the  building  to  be 
erected.  It  is  entirely  natural  that  the  intending 
builder,  when  he  first  interviews  the  architect, 
should  mention  the  probable  cost  which  he  has  in 
mind,  and  it  is  natural  too  that  the  architect,  in 
conferring  with  him,  should  make  to  him  some 
statement,  more  or  less  definite,  regarding  the 
amount  which  a  building  of  the  character  de- 
scribed by  the  client  will  probably  cost.  Any 
statements  by  the  architect,  or  conversations  be- 
tween him  and  the  owner,  which  can  be  construed 
either  as  an  implied  or  express  condition  or  war- 
ranty that  the  building  can  or  shall  be  erected  for 
a  certain  sum,  or  which  can  be  construed  as  an 
estimate  on  the  part  of  the  architect  of  the  prob- 
able cost  of  the  building,  may  be  fatal  to  his  right 
to  recover  for  his  services,  if  the  client  sees  fit  to 
take  advantage  of  the  situation.  In  all  proba- 
bility the  condition  most  frequently  specified  by 
the  owner  is  that  the  plans  are  to  cover  a  building 
which  shall  not  exceed  in  cost  a  definite  specified 
maximum.  Where  such  a  condition  is  prescribed, 
or  where  as  a  result  of  what  has  passed  between 
the  architect  and  the  owner,  the  understanding 
can  be  said  to  be  that  the  cost  of  construction 
shall  not  exceed  a  certain  sum,  or  that  the  plans 
are  accepted  on  condition  that  it  shall  not  exceed 
such  sum,  no  compensation  can  be  recovered  for 
the  plans  or  for  their  preparation  in  the  event 
that,  as  finally  submitted,  they  cover  a  building 


42         LAW  OF  ARCHITECTURE  AND  BUILDING 

exceeding  in  cost  the  stipulated  maximum 
amount.4  Again,  if  the  architect  submit  esti- 
mates of  the  probable  cost  of  the  building,  he 
cannot  recover  his  fee  for  the  plans  prepared  un- 
less the  cost  of  the  building  is  reasonably  close  to 
the  estimates  submitted.5 

§  25.  Limitation  of  Rule. — Under  these  cir- 
cumstances, however,  where  the  architect  gives 
merely  the  probable  cost  of  the  building,  the  mere 
fact  that  the  cost  exceeds  slightly  the  estimate 
which  he  has  made  will  not  in  itself  defeat  his  re- 
covery, for  it  is  the  province  of  the  jury  to  deter- 
mine whether  the  estimate  submitted  by  the  archi- 
tect is  reasonably  near  the  actual  cost  of  the  build- 
ing, and  the  architect  has  a  right  to  have  this 
question  submitted  to  the  jury  for  determination.6 
If,  also,  the  architect  upon  finding  that  the  cost  of 
the  building,  if  erected  in  accordance  with  the 
plans  prepared  and  submitted,  will  exceed  the 
amount  stipulated  by  the  owner  as  the  maximum 
amount  which  the  building  is  to  cost,  or  will  ex- 
ceed the  cost  as  given  in  his  estimate,  submit  sug- 
gestions as  the  result  of  which  and  by  following 
which  the  work  can  be  properly  done  at  a  less  cost, 

4  Horgan  v.  New  York,  1 14  1049 ;  Feltham  v.  Sharp,  99  Ga. 

N.   Y.   A.    D.    555 ;    Walsh   v.  260,  25  S.  K  619. 
St.  Louis,  etc.,  Assn.,  101  Mo.          6  Moneypenny  v.  Hartland,  I 

534;  Ada  St.  Methodist  Epis-  C.  &  P.  (Carrington  &  Payne), 

copal    Church   v.   Garnsey,    66  352,  2  C.  &  P.  378;  Nelson  v. 

111.    132;    Maak   v.    Schneider,  Spooner,   2   F.   &   F.    (Foster 

57    Mo.    App.    431 ;    Emerson  &    Finlanson)    613 ;    Smith   v. 

v.  Kneezel,  62  S.  W.  (Tex.  Civ.  Dickey,  74  Tex.  61,  supra. 
App.  Dec.  1900)  551 ;  Smith  v.          6  Nelson  v.  Spooner,  2  F.  & 

Dickey,  74  Tex.  61,  11   S.  W.  F.  (Foster  &  Finlanson)  613. 


THE  COMPENSATION  OF  THE  ARCHITECT        43 

and  at  a  cost  meeting  and  consistent  with  the  re- 
quirement as  to  the  stipulated  maximum  cost  or 
the  estimate  submitted,  he  will  be  entitled  to  his 
compensation. 

In  a  leading  case  on  this  last  point,  decided  in 
Iowa,  the  architect,  in  consideration  of  a  three 
per  cent,  commission,  agreed  to  furnish  pre- 
liminary sketches  and  complete  working  drawings 
and  specifications,  to  superintend  the  building 
operations  and  to  make  settlement  of  all  accounts. 
He  prepared  the  plans  and  specifications  and  was 
proceeding  to  carry  out  the  other  provisions  of 
his  agreement  when  the  owner  announced  his  de- 
cision not  to  proceed  with  the  building.  It  ap- 
peared that  the  parties  contemplated  a  building 
to  cost  not  more  than  $10,000,  and  that  the  plans 
and  specifications  as  originally  prepared  entailed 
an  expense  in  excess  of  $16,000.  Subsequently, 
finding  that  the  cost  would  reach  this  sum  and 
thus  exceed  the  $10,000  contemplated,  the  archi- 
tect suggested  certain  changes  which  would  bring 
the  cost  within  the  contemplated  $10,000  limit. 
The  drawings  were  then  accepted  by  the  owner. 
The  Court  held  that  the  architect  could  recover 
for  his  services  in  preparing  the  plans  and  specifi- 
cations and  that  the  fact  that  the  drawings,  as  at 
first  prepared,  called  for  a  $16,000  building  was, 
under  the  circumstances,  no  bar  to  the  right  of 
recovery.  It  should  be  noted  that  in  the  fore- 
going case  there  was  a  direct  acceptance  of  the 
plans  by  the  owner,  which  of  course  strengthens 
the  position  of  the  architect;  but  the  doctrine,  as 


44         LAW  OF  ARCHITECTURE  AND  BUILDING 

laid  down,  is  nevertheless  clear,  that  an  architect 
by  suggesting  changes  whereby  the  cost  is  reduced 
within  the  amount  specified  may  place  himself  in 
a  position  where  the  owner  cannot  rightfully  re- 
fuse payment  on  the  ground  that  the  cost  exceeds 
the  amount  specified  or  estimated.7  Of  course, 
such  suggestions  for  modifications,  whereby  a  re- 
duction in  cost  is  to  be  effected,  must  be  made  in 
practical  form,  in  good  faith,  and  with  reasonable 
promptness;  they  will  not  have  the  same  favor- 
able effect,  from  the  standpoint  of  the  interests  of 
the  architect,  if  made  tardily  or  after  the  claim 
has  been  pressed  and  a  recovery  for  services 
sought. 

In  the  event  that  the  fact  that  the  cost  exceed, 
in  a  given  case,  the  stipulated  maximum,  is  due  to 
the  interference  of  those  by  whom  the  architect  is 
employed,  and  the  endeavor  of  the  latter  in  good 
faith  to  meet  their  demands  in  regard  to  the  build- 
ing— these  demands  necessitating  a  more  costly 
building  than  contemplated — and  a  building  of  no 
particular  character  is  specified,  the  architect  may 
recover.8 

§  26.  Necessity  of  Delivery. — In  order  to  en- 
title the  architect  to  recover  for  the  plans  prepared 
it  must  be  shown  that  they  have  been  delivered 
or  that  the  delivery  of  them  has  been  prevented  or 
waived  by  the  owner.  Mere  preparation  of  them 
in  the  office  of  the  architect,  if  they  are  not  deliv- 
ered to  the  client  who  has  ordered  them  or  in 

7  Marquis  v.  Lauretson  (Iowa          8  Coombs   v.   Beede,   89  Me. 
Sup.  Ct.  1888),  40  N.W.  73.  187,  36  Atlantic  104. 


THE  COMPENSATION  OF  THE  ARCHITECT        45 

accordance  with  his  directions,  will  not  ordinarily 
charge  him  with  any  liability  to  make  payment  for 
them,  inasmuch  as  he  has  not  received  any  benefit 
from  their  preparation.9 

Where  an  architect  was  directed  to  prepare 
plans  for  a  theater,  and  he  accordingly  prepared 
a  sketch  and  delivered  it  to  the  defendant,  and  the 
defendant  kept  it  for  a  week  and  expressed  his 
approval  of  it  and  told  the  architect  to  make  the 
plans,  and  went  so  far  as  to  have  his  builder  call 
on  the  architect  at  the  owner's  request  and  take 
the  plans  and  make  and  deliver  to  the  owner  an 
estimate  based  upon  them,  the  plans  were  held  to 
have  been  clearly  delivered  and  the  architect's 
right  to  recover  for  the  value  of  his  services  was 
sustained.10 

Under  the  foregoing  circumstances,  all  the 
general  elements  necessary  to  allow  a  recovery 
were  present.  There  was  not  a  specific  contract, 
but  the  plans  were  prepared  by  the  architect  at 
the  request  of  the  defendant  and  there  were  no 
special  conditions  upon  which  the  defendant 
stipulated  that  payment  should  be  made.  Having 
taken  the  plans  and  caused  the  architect  to  per- 
form the  services  in  question,  at  his  request,  he 
could  not  then  refuse  to  pay  for  them,  and  this, 
entirely  irrespective  of  whether  they  were  used 
by  him  or  not. 

9  Kutts   v.    Pelby,    20    Pick.      v.   Freres   des   Ecoles   Chreti- 
(Mass.)  65;  Wandelt  v.  Cohen,      ennes,  34  L.  C.  Jur.  89. 
15  Misc.   (N.  Y.)   90;  Resher         "  Kutts   v.    Pelby,  20   Pick. 

(37  Mass.)   65,  supra. 


46         LAW  OF  ARCHITECTURE  AND  BUILDING 

§  27.  Delivery  and  Acceptance  Distinguished. 
— A  delivery  to,  or  the  receipt  by,  the  owner  of 
the  plans,  however,  must  not  be  confused  with  an 
acceptance.  It  is  quite  possible  that  even  if  they 
are  properly  prepared  and  delivered,  the  owner 
may,  on  some  pretext  or  another,  or  for  some  rea- 
son, valid  or  invalid,  as  the  case  may  be,  refuse  to 
accept  them.  If  the  work  has  been  properly  done 
and  the  architect  has  complied  with  his  agree- 
ment, the  refusal  by  the  owner  to  accept  will  not 
relieve  him  from  liability  and  the  acceptance  is 
not,  therefore,  under  such  circumstances,  neces- 
sary to  complete  the  right  of  the  architect  to  re- 
ceive compensation  for  his  services;  n  but  in  the 
event  of  special  conditions  in  the  agreement,  or 
of  special  circumstances  under  which  the  plans 
are  submitted,  acceptance  may  become  of  prime 
importance.  Where,  for  instance,  plans  are  sub- 
mitted on  approval,  or  are  submitted  in  competi- 
tion with  plans  prepared  by  others  and  on  the  un- 
derstanding that  the  plans  which  are  accepted  are 
to  be  the  ones  for  which  payment  will  be  made,  no 
recovery  can  be  had  if  the  plans  are  not  accepted, 
inasmuch  as  acceptance  under  these  circum- 
stances, is  a  condition  precedent  to  the  right  of 
the  architect  to  recover.12 

In  the  case,  too,  where  an  architect  solicits  the 
work  of  superintending  the  building  and,  of  his 

11  Canfield  (New  England  12Audsley  v.  The  Mayor, 
Monument  Co.)  v.  Johnson  et  74  Federal  274;  Allen  v.  Bow- 
al.,  144  Pa.  State  61,  22  At-  man,  7  Mo.  App.  29;  Walbank 
lantic  974.  v.  Protestant  Hospital,  7  Mon- 

treal Q.  B.  166. 


THE  COMPENSATION  OF  THE  ARCHITECT        47 

own  initiative  and  not  at  the  request  of  the  owner, 
leaves  sketches  with  the  latter  in  the  hope  that  his 
doing  so  may  result  in  his  securing  the  employ- 
ment sought,  and  the  owner  returns  the  sketches 
and  neither  accepts  them  nor  makes  use  of  them, 
no  recovery  for  them  can  be  had.13  This  is  on  the 
theory  that  the  services  were  not  rendered  at  the 
request  of,  or  sought  by,  the  owner,  but  were 
purely  voluntary  and  at  the  instance  of  the  archi- 
tect alone,  and  for  the  purpose  of  inducing  the 
owner  to  employ  him  to  superintend  the  work. 
If  the  owner  were  to  keep  the  sketches  or  make 
use  of  them,  even  though  he  had  not  sought  the 
services  of  the  architect  in  the  first  instance,  and 
even  though  the  services  had  not  been  performed 
at  the  request  of  the  owner,  payment  for  the 
sketches  could  be  demanded  for  the  reason  that, 
having  received  the  benefit  of  them,  and  retained 
and  so  accepted  them,  the  owner  could  not  refuse 
to  reasonably  compensate  the  architect  for  the 
services  involved. 

§  28.  Necessity  of  Actual  Contract — Custom 
Alone  Insufficient  to  Sustain  Recovery. — In  the 
event  that  no  contract  of  any  character — no  meet- 
ing of  their  minds — either  in  express  terms  or  by 
implication,  can  be  established  between  the  owner 
and  the  architect,  no  amount  of  custom  or  usage 
can  place  upon  the  owner  a  liability  to  pay  for 
services  rendered.  The  evidence  of  custom  or 
usage  may  be  competent  either  as  tending  to  show 
an  implied  agreement  to  pay  a  reasonable  com* 

18  Allen  v.  Bowman,  7  Mo.  App.  29. 


48         LAW  OF  ARCHITECTURE  AND  BUILDING 

pensation,  or,  if  no  such  implied  agreement  be 
shown,  competent  upon  the  question  of  what  a 
reasonable  compensation  under  the  circumstances 
would  be ;  but  unless,  in  some  way,  an  agreement 
by  the  owner,  express  or  implied,  can  be  deduced 
from  the  circumstances  under  which  the  services 
are  rendered,  such  custom  or  usage  can,  as  bind- 
ing him,  have  no  force  or  effect  whatsoever. 

§  29.  Illustration  of  Rule. — A  rather  famous 
case  in  which  this  doctrine  is  enunciated  and  in 
which  Mr.  Melville  W.  Fuller,  afterward  Chief 
Justice  of  the  United  States,  appeared  as  counsel 
for  the  plaintiff,  was  decided  by  the  Supreme 
Court  of  the  United  States  in  October,  i88o.14 
In  that  case,  the  County  of  Cooke  and  the  City  of 
Chicago,  proposing  to  erect  a  building  to  combine 
a  new  court-house  and  city-hall,  to  be  used  and 
paid  for  respectively  by  the  county  and  by  the 
city,  offered  a  premium  for  plans.  The  plaintiff 
furnished  a  plan  accordingly  and  received  the 
compensation  promised.  No  additional  contract 
between  the  parties  was  entered  into.  The  city 
and  county  each  adopted  a  resolution  formally 
selecting  the  plan  of  the  plaintiff,  subject  to  such 
modifications  as  might  thereafter  be  determined 
upon  in  the  event  that  the  plaintiff's  estimate  of 
the  cost  of  construction  should  be  verified.  The 
plaintiff  testified  that  thereafter  he  had  verified 
the  cost  of  the  construction  in  the  customary  and 
usual  way,  and  produced  his  plans  and  offered  to 
prove  their  value  and  the  time  employed  and  the 

14  Tilley  v.  County  of  Cooke,  103  U.  S.  155. 


THE  COMPENSATION  OF  THE  ARCHITECT        49 

expense  incurred  in  the  preparation  of  them. 
This  evidence  the  Court  excluded.  The  plaintiff 
further  offered  to  prove  that,  by  the  usage  and 
custom  of  architects,  in  the  absence  of  a  special 
contract,  the  superintendence  of  the  construction 
of  a  building  should  be  given  to  the  architect 
whose  plans  were  adopted.  The  Court  likewise 
refused  to  allow  him  to  submit  evidence  on  this 
point.  He  then  offered  to  prove  that  in  accord- 
ance with  the  custom  and  usage  of  architects,  in 
cases  where  prizes  for  plans  submitted  as  his  had 
been  were  offered,  the  plans  were  the  property  of 
the  successful  competitors  and  belonged  to  them, 
and  if  they  were  subsequently  adopted  as  the 
plans  in  accordance  with  which  the  building 
should  be  constructed,  were  always  paid  for,  inde- 
pendently of  the  special  prize  itself.  This  evi- 
dence likewise  was  excluded,  as  was  also  his  evi- 
dence offered  to  establish  the  value  of  services  in 
verifying  the  cost  of  the  proposed  building,  ac- 
cording to  his  plans.  The  Court  below  directed 
thereupon  a  verdict  for  the  defendants  and  the 
case  came  before  the  Supreme  Court  by  writ  of  er- 
ror from  that  judgment.  It  did  not  appear  that 
the  plans  of  the  plaintiff  were  used  by  either  one  of 
the  defendants  or  that  the  building  in  connection 
with  which  they  were  prepared  was  ever  erected. 
In  substance,  the  plaintiff's  claim  was  that,  by 
virtue  of  the  adoption  of  the  resolution  by  the  city 
council  and  county  board,  the  city  and  the  council 
were  bound,  without  any  further  act  on  the  part 
of  the  plaintiff,  or  further  assent  on  his  part,  to 


50          LAW  OF  ARCHITECTURE  AND  BUILDING 

proceed  and  erect  the  building  in  accordance  with 
his  plans  and  the  estimated  cost.  It  did  not  ap- 
pear that  the  services  of  the  plaintiff,  in  verifying 
the  cost  of  the  proposed  building  in  accordance 
with  his  plans,  were  rendered  at  the  instance  or 
request  of  the  defendants  or  either  of  them,  and 
hence  a  statement  of  facts  was  not  shown  as  a 
result  of  which  the  law  would  imply  a  contract  to 
pay  for  these  services.  The  Supreme  Court  held 
that:— 

"In  this  case,  there  being  only  an  expression  of  purpose 
by  one  party  to  erect  a  building  according  to  plans  ante- 
cedently made  by  another  and  no  obligation  entered  into 
by  the  other  party,  and  no  plans  used  or  building  erected 
there  was  no  contract  between  the  parties  either  express 
or  implied.  .  .  .  Proof  of  usage  can  only  be  received  to 
show  the  intention  or  understanding  of  the  parties  in  the 
absence  of  a  special  agreement  or  to  explain  the  terms  of 
a  written  contract  .  .  ." 

"In  all  cases  where  evidence  of  usage  is  received,  the 
rule  must  be  taken  with  this  qualification,  that  the  evi- 
dence be  not  repugnant  to  or  inconsistent  with  the  con- 
tract .  .  .1<J 

"The  inference  from  these  principles  is  inevitable,  that, 
unless  some  contract  is  shown,  evidence  of  usage  or  cus- 
tom is  immaterial. 

"The  offer  of  the  plaintiff  to  prove  certain  facts  having 
been  rejected,  he  must  be  presumed  to  be  able  to  prove 
what  he  offered  to  prove.  We  must,  therefore,  assume 

15  Citing,       Hutchinson       v.  Bing.  465,  474 ;  Clarke  v.  Roy- 
Tatham,    Law    Rep.    8    C.    P.  stone,  13  M.  &  W.  752;  Yeats 
482;  Field  v.  Lelean,  30  L.  J.  v.  Pirn,  Holt  N.  P.  95;  True- 
Ex.  168;  Baywater  v.  Richard-  man   v.   Loder,   n    A.  and   E. 
son,  i  Ad.  &  E.  508;  Robinson  589;    Bliven   v.    New   England 
v.  U.  S.,  13  Wall  363.  Screw  Co.,  23  How.  420. 

16  Citing,  Holding  v.  Pigott,  7 


THE  COMPENSATION  OF  THE  ARCHITECT        51 

that  the  custom  which  he  offered  to  prove  did,  in  fact, 
exist.  But  what  was  that  custom?  Clearly,  that  if  the 
building  was  erected  according  to  the  successful  plans,  the 
architect  was  entitled  to  pay  therefor.  That  was  such  an 
acceptance  and  adoption  of  his  plans  as  would  give  him 
the  right  to  compensation  therefor,  and  the  right  to  super- 
intend the  erection  of  the  building  and  receive  the  usual 
remuneration.  The  custom  certainly  did  not  bind  the 
party  who  offered  prizes  for  plans,  after  having  paid  the 
prizes,  to  pay  also  for  plans  that  he  never  used,  and  for 
superintendence  of  a  building  that  he  never  erected, 
merely  because  he  had  selected  a  particular  plan  and  an- 
nounced his  purpose  to  build  in  accordance  with  it.  If 
such  were  the  custom  and  usage  of  architects  in  Chicago, 
it  was  an  absurd  and  unreasonable  custom,  and  therefore 
not  binding  .  .  ." 

"If  the  plaintiff  had  offered  to  show  that  after  the 
passage  of  the  resolution  by  which  his  plan  was  accepted, 
the  defendants  had  erected  their  building  according  to  his 
plans,  then  the  evidence  of  the  custom  would  have  been 
pertinent.  But  he  made  no  such  offer,  and  it  is  to  be  pre- 
sumed no  such  fact  existed.  The  evidence  of  this  custom 
was,  therefore,  properly  excluded." 

It  is  quite  natural  that  variations  of  the  ordi- 
nary problems  in  regard  to  compensation  should 
arise  in  the  practice  of  every  architect,  dependent 
on  the  special  circumstances  of  each  case.  It  is 
impossible  to  anticipate  the  exact  state  of  facts 
which  may  in  a  special  case  be  presented,  but, 
whatever  the  situation  may  be,  it  will,  in  the  vast 
majority  of  cases,  be  found  to  be  governed  by  one 
or  another  of  the  broad  general  rules  determining 
the  right  of  the  architect  to  payment  for  his  serv- 
ices and  prescribing  the  circumstances  under 

17  Citing,  United  States  v.  Buchanan,  8  How.  83. 


52          LAW  OF  ARCHITECTURE  AND  BUILDING 

which  that  payment  can  properly  be  demanded. 
In  every  case  the  broad  underlying  principles  will 
be  found  to  be  that,  where  a  definite  agreement 
has  been  made,  a  recovery  can  be  had  in  accord- 
ance with  it  if  the  architect  has  performed  his 
part  of  the  agreement,  and  if  no  definite  agree- 
ment has  been  made,  a  recovery  can  be  had  for  the 
reasonable  value  of  the  plans  providing  the  archi- 
tect is  not  in  default  and  that  nothing  has  been 
said  or  done  by  the  owner,  or  by  the  architect, 
which  introduces  into  the  situation  a  new  or  addi- 
tional element,  such  as  the  submission  or  ac- 
ceptance of  the  plans  on  approval,  or  on  the  un- 
derstanding that  the  work  covered  by  them  shall 
not  cost  more  than  a  certain  sum  specified. 

§  30.  Competitions. — It  has  been  already  noted 
that  where  plans  are  submitted  in  competition  on 
the  understanding  that  payment  is  to  be  made 
only  to  the  successful  competitors,  those  who  are 
unsuccessful  can  have  no  cause  of  action  for  their 
services;  and  also,  that  where  they  are  submit- 
ted in  competition,  as  in  the  Tilly  case  Supra, 
wherein  the  plans  for  the  city  hall  and  county 
courthouse  at  Chicago  were  concerned,  on  the 
understanding  merely  that  a  prize  is  to  be 
awarded  to  the  successful  architect,  but  no  further 
contract  appears  between  the  parties,  the  extent 
of  the  architect's  claim  is  the  prize  specified. 
This  situation,  however,  will  be  varied  if  other 
conditions  are  introduced  into  the  contest.  If, 
for  instance,  the  plans  are  submitted  in  competi- 
tion on  the  understanding  that  those  meeting  with 


THE  COMPENSATION  OF  THE  ARCHITECT        53 

the  approval  of  the  committee  are  to  be  selected 
as  the  plans  for  the  building  and  that  the  architect 
submitting  the  successful  plans  shall  be  appointed 
the  architect  and  the  superintendent  of  its  con- 
struction, the  architect  whose  plans  are,  under 
such  conditions,  accepted  in  the  competition,  has 
a  definite  right  to  be  employed  as  the  architect  of 
the  building  and  as  superintendent  of  its  con- 
struction, and  has  a  right  of  action  for  a  refusal 
to  so  employ  him.18 

§  31.  Proper  Care  and  Skill  Required. — An- 
other question  which  may  be  of  vital  importance 
in  determining  the  right  of  the  architect  to  re- 
cover is  the  question  whether,  in  his  services  ren- 
dered, he  has  exercised  that  proper  care,  skill  and 
ability  which,  from  his  membership  in  his  pro- 
fession and  his  technical  training,  he  is  presumed 
to  possess.  If  he  allow  the  building  to  be  erected 
in  a  manner  which  he  knows  or,  from  his  train- 
ing, should  know  to  be  improper,  he  cannot  re- 
cover. 

This  rule  would  seem  to  apply  where  an  archi- 
tect, after  a  personal  examination  of  the  site  sug- 
gested, has  allowed  a  building  to  be  erected  thereon, 
when  his  training  should  have  warned  him  that 
the  site,  on  account  of  the  poor  composition  of  the 
soil  or  for  other  reasons,  could  not  properly  sup- 
port the  building  or  would  be  entirely  unsuitable 
for  the  purposes  proposed.183  The  situation  would 
be  altered  if  the  architect,  after  an  examination 

18  Walsh  v.  St  Louis  Expo-  18a  Moneypenny  v.  Hartland, 
sition,  etc.,  Assn.  90  Mo.  459,  i  C.  &  P.  (Carrington  &  Payne) 
affirming  16  Mo.  App.  502.  352,  2  C.  &  P.  378. 


54         LAW  OF  ARCHITECTURE  AND  BUILDING 

of  the  site,  warned  the  owner  that,  in  his  opinion, 
it  was  not  suitable  and  the  owner,  with  full  knowl- 
edge of  the  facts  thus  brought  to  his  attention, 
directed  him  nevertheless  to  proceed.  Under 
these  conditions  the  owner  would  be  assuming  the 
risk  personally,  and  the  facts  would  present  a 
very  different  case  from  that  which  is  presented 
where  the  architect,  knowing  the  defect,  keeps 
silent  and  allows  the  building  to  proceed,  or  is  so 
negligent  that  he  fails  to  detect  the  defect  at  all. 
§  32.  Modification  of  Contract. — It  will  some- 
times happen  that  a  contract  specific  in  its  terms 
as  respects  compensation  will  be  modified  by  a 
new  contract,  in  which  no  specific  rate  of  compen- 
sation is  agreed  upon,  and  the  new  contract  may, 
under  such  circumstances,  take  the  place  of  the 
old.  So,  where  a  contract,  definite  in  its  terms  as 
respects  compensation,  was  entered  into  and  was 
subsequently  changed  so  as  to  make  provision  for 
plans  of  a  more  extensive  character  than  those 
originally  contemplated,  but  did  not  specify  in  its 
modified  form  any  rate  or  amount  of  compensa- 
tion, the  architect  was  allowed  to  prove,  on  the 
theory  of  quantum  meruit,  the  reasonable  value 
of  the  plans  prepared  and  of  the  additional  serv- 
ices rendered  by  him.19  In  this  connection  it 
must,  however,  be  borne  in  mind  that  the  law  does 
not  allow  a  written  agreement  to  be  varied  by  a 
parol  agreement,  and  that  an  instrument,  to  be 
effective  to  modify  another,  must  be  executed 

19  Marcotte  v.  Beaupre,  15  Minn.  152. 


THE  COMPENSATION  OF  THE  ARCHITECT        55 

with  the  same  formality  as  the  instrument  which 
it  attempts  to  modify. 

If  the  owner  direct  that  changes  be  made  in  the 
plans  or  in  the  building,  after  the  contract  for  the 
work  has  been  awarded,  or  during  the  progress 
of  the  work,  and  the  architect  performs  additional 
services  in  revising  the  plans  or  in  superintending 
the  extra  work,  made  necessary  by  the  changes 
directed  by  the  owner,  he  may  recover  for  the 
value  of  his  services  in  changing  the  plans,20  and 
in  superintending  the  work  done ; 21  and  it  is  not 
necessary,  it  seems,  that  he  shall  have  given  to  the 
owner  any  notice  that  he  expected  additional  com- 
pensation for  such  extra  work.22 

§  33.  Rescission  of  Contract  by  Owner — Pre- 
liminary Sketches. — Another  situation  of  special 
interest  to  the  architect  as  affecting  his  right  to 
compensation,  and  one  which  arises  with  com- 
parative frequency,  is  that  which  is  presented 
when  the  owner,  after  the  services  agreed  upon 
have  been  in  part  performed,  rescinds  the  con- 
tract, or  expresses  his  determination  to  proceed 
no  further  with  the  work.  If  his  determination 
not  to  proceed  with  the  building  is  based  upon  the 
fact  that  it  has  been  agreed  that  the  building 
shall  not  cost  more  than  a  certain  sum,  and  that 
the  estimates  show  that  the  limit  will  be  exceeded, 
the  architect,  as  has  been  seen,  will,  if  this  be 

20 Johnson  v.  O'Neill  et  al.,  "Smith  v.  Bruyere,  152  S. 

148  N.  W.   (Mich.  1914)   364,  W.    (Tex.   1913),  813. 

and  see  Baker  v.  Publishing  Co.  22  Smith  v.   Bruyere,   152   S. 

(Missouri  1903),  77  S.  W.  585.  W.  813,  supra. 


56          LAW  OF  ARCHITECTURE  AND  BUILDING 

true,  have  no  remedy.  But  where  some  such 
element  is  not  introduced,  the  architect  will  have 
the  right  to  recover  for  the  services  which 
he  has  rendered,  together  with  damages  in  an 
amount  sufficient  to  justly  compensate  him  for 
such  injury  as  he  has  sustained  by  reason  of  the 
breach  of  contract  on  the  part  of  the  owner. 
Where,  therefore,  a  client  requests  an  architect 
to  proceed  and  prepare  sketches  and  the  architect 
does  so  and  delivers  the  sketches,  and  the  client 
then  notifies  him  that  he  has  changed  his  mind 
and  does  not  care  to  proceed,  the  client  cannot,  by 
such  notification,  escape  his  liability  to  make  pay- 
ment for  the  sketches  prepared,  as  the  notice 
serves  only  to  prevent  the  preparation  of  addi- 
tional plans. 

§  34.  Illustration  of  General  Rule. — This  gen- 
eral rule  has  been  clearly  stated  by  the  Appellate 
Division  of  the  New  York  Supreme  Court,  which, 
reversing  a  judgment  in  the  court  below  in  favor 
of  the  owner,  has  held  specifically  that,  under  cir- 
cumstances such  as  those  stated,  the  architect  has 
a  definite  right  to  recover  for  the  preliminary 
sketches  prepared.23  The  Court  said: 

"The  plaintiff  did  not  claim  to  recover  for  completed 
plans  and  drawings,  but  only  for  preliminary  sketches, 
and  we  are  inclined  to  think  that,  on  the  evidence  intro- 
duced, the  jury  would  have  been  authorized  to  determine 
that  the  preliminary  sketches,  which  were  shown  to  the 
defendant  at  the  time  he  claimed  to  have  rescinded  the 
contract,  were  completed,  and  that  the  only  effect  of  his 

23  Pierce  v  Thurston,  40  A.  D.  (N.  Y.)  577. 


THE  COMPENSATION  OF  THE  ARCHITECT        57 

countermand,  at  the  time  in  question,  was  to  prevent  the 
plaintiff  from  going  further  and  making  complete  plans 
and  drawings.  .  .  . 

"It  is  true  that  the  defendant  could  at  any  time  coun- 
termand his  order  for  preliminary  sketches  (Clark  v. 
Marsiglia,  i  Den.  317 ;  Lord  v.  Thomas,  64  N.  Y.  107,  109, 
no),  and  that  the  plaintiff  could  not  recover  for  work 
done  thereon  after  such  countermand.  But  the  evidence 
introduced  on  the  trial  was  such  as  to  authorize  a  finding 
by  the  jury  that  the  plaintiff  was  employed  by  the  defend- 
ant to  make  the  preliminary  drawings  in  question,  and  that 
he  commenced  at  once  and  completed  them.  The  defense 
interposed  by  the  defendant,  that  he  countermanded  the 
order  on  the  Monday  following  the  day  that  it  was  given, 
was  an  affirmative  one.  A  countermand  did  not  defeat 
the  plaintiff's  recovery  unless  given  before  the  work  was 
completed.  It  was  for  the  defendant  to  show  an  ef- 
fectual countermand — one  given  before  the  drawings 
were  finished.  This  he  failed  to  do.  The  burden  was 
upon  the  defendant,  asserting  as  an  affirmative  defense  to 
the  plaintiff's  claim  a  rescission  of  the  contract  under 
which  the  plaintiff  claimed,  to  show  that  such  rescission 
was  made  before  the  work  which  was  shown  by  the  plain- 
tiff to  have  been  done  by  him  was  finished." 

§  35.  Cannot  Compel  Client  to  Complete. — In 
some  instances  where  one  who  has  employed 
others  to  perform  certain  services  has  notified 
them  of  his  desire  that  no  further  services  be 
performed  prior  to  the  completion  of  the  services 
contracted  for,  attempts  have  been  made  to  com- 
pel him  to  permit  the  work  to  be  completed.  It 
has  been  definitely  determined,  however,  that, 
while  a  recovery  may  be  had  for  the  breach  of  the 
contract,  the  employer  cannot  be  compelled  to  pro- 
ceed with  the  completion  of  work  which  he  has 


58          LAW  OF  ARCHITECTURE  AND  BUILDING 

decided  he  does  not  care  to  undertake,  and  that 
the  architect  cannot  persist  in  proceeding  further 
under  such  conditions.24  Similarly,  where  a  con- 
tractor has  sought  to  compel  the  State  to  proceed 
with  the  erection  of  a  public  building,  which  he 
has  been  constructing  under  contract  with  the 
State,  the  specific  performance  of  the  contract  on 
the  part  of  the  State  will  not  be  enforced,  and  a 
State  statute,  although  involving  a  breach  of  the 
contract  between  the  State  and  the  contractor, 
will  not,  for  this  reason,  be  objectionable  on  the 
ground  of  unconstitutionally.25 

§  36.  Measure  of  Damages  on  Refusal  to  Com- 
plete.— As  to  the  measure  of  damages  in  a  case 
where  the  defendant  by  requiring  the  plaintiff  to 
stop  work  has  violated  his  contract  and  thus  be- 
came liable  for  the  resultant  damages  to  the 
plaintiff,  such  damages  "would  include  a  recom- 
pense for  the  labor  done  and  materials  used  and 
such  further  sum  in  damages  as  might  upon  legal 
principles  be  assessed  for  the  breach  of  the  con- 
tract, but  the  plaintiff  had  no  right  by  obstinately 
proceeding  in  the  work  to  make  the  penalty  upon 
the  defendant  greater  than  it  would  otherwise 
have  been."  26 

§  37.  Basis  of  Computation  of  Value  of  Serv- 
ices.— It  remains  to  say  a  word  in  regard  to  the 
basis  upon  which  the  value  of  the  architect's  serv- 

24  Clark     v.      Marsiglia,      i          25  Lord  v.  Thomas,  64  N.  Y. 
Denio    (N.   Y.)    317;   Lord  v.      107. 

Thomas,  64  N.  Y.  107.  2e  Clark  v.  Marsiglia,  i  Denio 

(N.  Y.)   317- 


THE  COMPENSATION  OF  THE  ARCHITECT        59 

ices  is  to  be  determined.  In  the  case  of  a  definite 
contract,  the  terms  thereof  will  be  controlling  and 
the  question  of  what  is  the  reasonable  value  of 
the  services  rendered  will  not  arise;  but  where 
the  recovery  is  sought  upon  the  basis  of  quantum 
meruit,  proof  of  what  constitutes  a  reasonable 
valuation  of  the  work  done  is  requisite.  Where 
it  is  agreed  that  the  percentage  representing  the 
compensation  of  the  architect  is  to  be  upon  the 
"estimated  cost,"  the  provision  is  interpreted  as 
referring  to  the  reasonable  cost  of  the  building 
"erected  in  accordance  with  the  plans  and  specifi- 
cations, .  .  .  and  not  necessarily  the  amount  of 
some  actual  estimate  made  by  a  builder,  nor  an 
estimate  agreed  upon  by  the  parties,  nor  yet  an 
estimate  or  bid  accepted  by  the  defendant."  2T 
The  architect  may  not  prove  a  professional  cus- 
tom or  usage  which  will  entitle  him  to  be  paid 
a  percentage  based  upon  estimates  which  he 
has  himself  prepared.  The  determining  element 
should  be  the  time  spent  upon  the  work  or  such 
understanding,  express  or  implied,  as  existed.28 
If  it  be  shown  that  the  owner  was  fully  cognizant 
of  a  custom  whereby  the  percentage  would  be 
based  upon  the  architect's  own  estimates,  it  seems 
that  a  modification  of  this  rule  might  quite  pos- 
sibly be  applied,29  although  proof  of  the  custom 
would  not  be  allowed  to  vary  the  terms  of  a  con- 
tract entirely  specific  and  definite  in  its  provisions. 

27  Lambert    v.     Sanford,    55          29  Scott  v.   Maier,   56   Mich. 
Conn.  437.  554,  supra. 

28  Scott  v.Maier,.56  Mich.  554. 


60          LAW  OF  ARCHITECTURE  AND  BUILDING 

By  entering  into  such  a  contract,  with  a  knowl- 
edge of  the  special  customs  at  variance  with  it, 
the  parties  would  be  assumed  to  be  deliberately 
basing  their  agreement  on  the  conditions  specified 
in  the  contract,  and  in  no  way  upon  the  conditions 
prescribed  by  custom. 

Under  the  rule  of  quantum  ineruit,  where  the 
contract  is  silent  upon  the  subject  of  compensa- 
tion, the  architect,  as  has  been  seen,  will  be  en- 
titled to  a  reasonable  compensation.30  As  to 
what  constitutes  reasonable  compensation,  the 
decisions  will  vary  in  accordance  with  the  circum- 
stances, and  any  facts  which  bear  upon  the  rea- 
sonableness of  the  charge  will  be  competent  evi- 
dence. So,  a  schedule  of  customary  charges,  or 
proof  that  the  owner  was  aware  of  the  ordinary 
charges  of  the  architect,  or  that  the  architect  had 
shown  to  him,  without  objection  on  his  part,  a 
scale  of  his  own  rates  of  charges,  or  proof  of  the 
charges  made  for  similar  work  by  the  profession 
in  the  locality  where  the  contract  is  entered  into 
and  the  work  performed,  are  all  competent  as  ele- 
ments of  proof  on  the  question  of  what  charge  is 
reasonable.  In  New  York  it  has  been  definitely 
determined  that  the  charge  schedule  of  the  Ameri- 
can Institute  of  Architects  may  be  properly  intro- 
duced as  showing  the  customary  legitimate  rate 
of  compensation  allowable.31  The  New  York 
courts  have  likewise  decided  that  the  client  is 

30  Dull   v.    Bramhall,   49   111.          31  Oilman     v.      Stevens,     54 
364;     Knight     v.     Norris,     13      How.  Pr.   (N.  Y.)   197. 
Minn.  473 ;   Mulligan  v.   Mul- 
ligan, 18  La,  Ann.  20. 


THE  COMPENSATION  OF  THE  ARCHITECT        61 

chargeable  with  a  knowledge  of  the  standard  and 
regular  rates  of  the  architect's  fees,  where  it  ap- 
pears that  the  client  has  been  charged  the  same 
rates  by  the  same  architect  on  several  previous 


•  Q  9 

occasions. 


It  may  be  that  the  architect,  by  some  act  on  his 
part,  may  so  change  the  situation  as  to  render  in- 
competent proof  which  might  otherwise  be  com- 
petent on  the  point  of  reasonable  compensation. 
Thus  in  a  case  decided  by  the  Supreme  Court  of 
the  United  States,  where  the  plaintiff  and  his 
partner,  architects,  had  accepted  salaries  of 
$5,000  and  $3,000,  respectively,  the  one  as  archi- 
tect and  the  other  as  chief  draftsman,  for  pre- 
liminary work  done  by  them,  and  to  which  they 
devoted  their  entire  time,  in  connection  with  the 
Congressional  Library,  and  then  subsequently, 
upon  the  building  of  the  library,  claimed  to  be 
entitled  to  compensation  for  this  later  work  on 
the  basis  of  quantum  meruit,  the  Court  held  that 
the  compensation  for  such  later  work  should  not 
be  determined  on  the  basis  of  the  schedule  of 
charges  of  the  American  Institute,  for  the  reason 
that  the  architects,  in  accepting  the  salaries  speci- 
fied, had  themselves  furnished  a  basis  upon  which 
the  amount  of  the  reasonable  value  of  their  serv- 
ices should  be  computed,  and  allowed  them  $48,- 
ooo  for  six  years'  services.33 

§  38.  General  Suggestions. — In  dealing  with 
this  whole  general  subject  of  his  compensation, 

32  Gilman     v.     Stevens,     54         83  Smithmeyer  v.  U.  S.,  147 
How.   Pr.  N.  Y.  197,  supra.          U.  S.  342. 


62          LAW  OF  ARCHITECTURE  AND  BUILDING 

the  architect,  if  he  would  properly  protect  him- 
self, should  exercise  the  same  care  to  insure  that 
matters  be  definitely  understood  and  provided 
for  which,  it  has  been  seen,  it  is  so  desirable  that 
he  should  exercise  in  the  matter  of  his  powers  and 
liabilities  as  agent.  He  should  carefully  avoid 
any  statements  or  acts  from  which  may  be  in- 
ferred an  agreement  that  the  building  shall  be 
erected  for  a  definite  fixed  maximum  cost,  and 
should  likewise  avoid,  where  practicable,  the  sub- 
mission of  any  estimate  of  its  probable  cost  of 
construction.  Where  such  an  estimate  is  neces- 
sary he  will  do  well  to  couple  with  it  a  direct  state- 
ment to  the  effect  that  it  is  impossible  to  tell  the 
exact  amount  which  the  building  will  cost,  and 
that  it  must  be  understood  that  his  right  to  his 
compensation  must  in  no  wise  be  affected  by  any 
variation  between  the  estimated  amount  and  the 
amount  of  the  actual  building  cost.  Especially 
should  he  be  wary  in  accepting  and  undertaking 
work  where  the  client  stipulates,  as  a  condition 
precedent  to  payment  for  services  rendered,  that 
the  sketches  must  be  satisfactory,  for  agreement 
by  the  architect  to  such  a  condition  will  render 
him  powerless  to  enforce  payment  for  his  serv- 
ices, in  the  event  that  the  sketches  are  not  ap- 
proved— unless,  perhaps,  he  can  in  some  way 
show  that  the  client  has  not  acted  or  intended  to 
act  in  good  faith  in  making  the  condition,  and 
has  never  intended  to  accept  the  sketches  under 
any  circumstances. 

Where  a  client  specifies  that  a  certain  style  of 


THE  COMPENSATION  OF  THE  ARCHITECT        63 

architecture  shall  be  followed,  care  should  be 
taken  that  the  style  which  he  has  in  mind  is  clearly 
understood.  If,  for  instance,  he  states  that  he 
wishes  the  work  done  in  accordance  with  Gothic 
style,  it  may  well  be  that  his  idea  of  "Gothic"  is 
entirely  different  from  the  true  interpretation  of 
that  word  as  used  in  this  connection,  and  while, 
under  these  circumstances,  the  architect,  if  he  did 
the  work  in  Gothic  style,  and  thus  complied  with 
the  terms  of  his  contract,  would  be  able  to  sustain 
a  recovery,  yet  his  right  to  do  so  might  easily  be 
endangered  if  it  were  shown  that,  from  the  con- 
versation with  the  client,  or  other  circumstances, 
he  should  have  known  or  should  have  suspected 
that  the  meaning  of  the  word  Gothic,  as  inter- 
preted by  the  client,  was  not  the  same  as  the  ordi- 
nary meaning  and  interpretation  of  that  term  as 
used  in  the  architectural  profession. 

Again,  in  the  preparation  of  the  plans,  many 
difficult  situations  and  probable  losses  will  be 
avoided  if  care  be  taken  to  advise  the  client  of  the 
cost  of  the  extra  work  which  changes  ordered  by 
him  will  entail.  Where  the  client  makes  such 
changes,  thereby  increasing  the  cost  of  the  build- 
ing, his  act  in  itself  would,  where  it  has  been 
agreed  that  the  building  shall  not  cost  more  than 
a  definite  sum,  tend  to  relieve  the  architect  of  a 
part,  at  least,  of  the  liability  imposed  by  that  con- 
dition, but  the  latter's  position  will  be  infinitely 
stronger  if  he  be  in  a  position  to  state  that  he  has 
warned  the  owner  that  the  changes  contemplated 
will  necessitate  an  increase  in  price  over  the 


64          LAW  OF  ARCHITECTURE  AND  BUILDING 

amount  contemplated,  and  that  the  client  has 
made  the  changes  notwithstanding. 

So,  too,  the  client  should  be  warned  that  there 
may  well  be  a  variance  between  the  working 
drawings  as  finally  prepared  and  the  preliminary 
sketches  submitted.  If  there  be  a  substantial 
variance  in  this  respect,  that  is,  to  such  an  extent 
that  the  plans  call  for  a  building  entirely  or  radi- 
cally different  from  the  scheme  shown  by  the 
sketches,  or  a  building  so  varied  in  treatment 
or  in  plan  that  there  is  a  real  and  substantial 
difference  between  the  preliminary  suggestions 
upon  which  the  owner  acted,  and  the  plans  as 
finally  submitted  to  him,  the  owner  may  well 
claim  that,  having  ordered  plans  to  be  prepared 
for  a  building  to  accord  with  the  sketches  sub- 
mitted, he  cannot  be  called  upon  to  make  pay- 
ment for  plans  which  call  for  a  building  of  a 
distinctly  different  type.  The  mere  fact,  how- 
ever, that  the  plans  show  some  slight  modifi- 
cation in  unimportant  details  of  the  original 
scheme  as  shown  by  the  sketches,  will  not,  espe- 
cially where  the  client  has  been  warned,  as  sug- 
gested, that  some  variance  will  probably  be  in- 
evitable, preclude  a  recovery  by  the  architect  for 
the  full  amount  of  his  services  in  the  preparation 
of  the  plans  and  drawings. 

The  same  rules  upon  which  is  based  the  right 
of  the  architect  to  compensation  for  preliminary 
sketches  and  drawings  will  naturally  apply  to  his 
right  to  compensation  for  the  preparation  of 


THE  COMPENSATION  OF  THE  ARCHITECT        65 

specifications  and  the  superintendence  of  the 
building;  that  is  to  say  that  where  the  amount  or 
rate  of  compensation  is  definitely  specified  in  the 
contract,  the  terms  of  the  latter  will  be  con- 
trolling, and  where  the  amount  or  rate  is  not  so 
specified,  the  recovery  by  the  architect  will  be 
upon  the  theory  of  quantum  meruit,  viz.,  the  rea- 
sonable value  of  the  work  performed.  In  deter- 
mining this  reasonable  value,  evidence  of  custom, 
of  the  schedule  of  charges  of  the  American  Insti- 
tute, or  of  other  similar  facts  and  circumstances 
will  be  competent,  just  as  they  are  competent  in 
the  case  of  proof  of  the  reasonable  value  of  serv- 
ices performed  in  the  preparation  of  preliminary 
sketches  or  plans.  As  the  architect  owes  the  ut- 
most good  faith  to  the  owner  in  his  dealings  with 
him,  so  the  owner  must  be  entirely  honest  and 
above-board  in  his  dealings  with  the  architect, 
and  for  any  conspiracy  between  the  owner  and 
the  builder,  the  result  or  purpose  of  which  is  to 
injure  the  architect,  the  latter  can  hold  the  owner 
liable  in  damages.  So,  if  it  can  be  shown  that  an 
owner's  refusal  to  comply  with  the  contract,  and 
proceed  with  the  building,  is  pursuant  to  or  the 
result  of  an  improper  agreement  between  the 
owner  and  the  builder,  having  for  its  object  the 
prevention  of  a  recovery  by  the  architect  of  the 
amount  which  he  would  be  entitled  to  recover  if 
the  contract  were  completed,  proof  of  such  facts 
will  be  competent  as  tending  to  show  malice  or 
improper  conduct  on  the  part  of  the  owner,  thus 


66         LAW  OF  ARCHITECTURE  AND  BUILDING 

increasing  proportionately  the  damages  recover- 
able from  him  by  the  architect  for  the  breach  of 
contract  in  question. 

In  a  word,  the  more  definitely  all  conditions 
touching  the  right  of  the  architect  to  compensa- 
tion are  determined  upon  and  made  clear  in  ad- 
vance— the  more  care  that  is  exercised  by  the  ar- 
chitect in  determining  what  is  the  owner's  under- 
standing on  all  points,  and  that  his  understanding 
of  the  character  and  expense  of  contemplated 
changes  or  extra  work  done  is  clear — the  more 
surely  will  misunderstandings  and  controversies 
and  losses,  on  the  part  of  each,  be  avoided,  and  the 
less  opportunity  will  there  be  presented  for  the  en- 
try into  the  situation  of  conditions  adversely  af- 
fecting the  right  of  the  architect  to  proper  com- 
pensation for  the  time  and  thought  which  he  has 
expended,  the  expenses  which  he  has  incurred, 
and  the  services  which  he  has  rendered. 


CHAPTER  IV 

DUTIES  AND  LIABILITIES  OF  THE 
ARCHITECT 

§  39.  In  General — In  holding  himself  out  to 
the  public  as  a  practicing  member  of  the  archi- 
tectural profession  the  architect  assumes  the  same 
responsibility,  for  reasonable  skill  and  care  in  the 
public  service,  as  that  which  rests  upon  a  lawyer 
or  a  physician ; 1  and  under  the  rule  that  one  who 
publicly  professes  to  possess  skill  in  a  given  art 
thereby  represents  or  intimates  to  all  the  world 
that  he  possesses  the  ability  and  skill  requisite  to 
practice  that  art,2  he  who  holds  himself  out  to  the 
public  as  an  architect  is  presumed  to  possess  the 
skill  and  ability  requisite  and  necessary  for  the 
proper  practice  of  the  architectural  profession. 

The  broad  general  duty  of  an  architect  to  act 
in  the  utmost  good  faith  in  his  employer's  inter- 
est, and  to  do  no  act  which  may  hinder  him  in  giv- 
ing that  disinterested  and  honest  service  which 
his  relationship  with  his  client  demands,  has  al- 
ready been  referred  to.  It  remains  to  consider 
the  more  specific  duties  and  liabilities  of  the  archi- 
tect, such  as  the  preparation  of  plans  and  specifi- 

1  Coombs  v.   Beede,  89  Me.      B.  (N.  S.)  236,  and  see  opin- 

187.  ion  of  Jervis  C  J.  in  Jenkins 

2Harmer  v.  Cornelius,  5  C.      v.  Betham,  15  C.  B.,  at  p.  189. 

67 


68          LAW  OF  ARCHITECTURE  AND  BUILDING 

cations,  the  superintendence  of  the  work  and  the 
issuance  of  certificates. 

It  should  be  noted,  preliminarily,  that  an  archi- 
tect is,  in  general,  liable  for  want  of  care  or  skill 
in  the  execution  of  his  work  to  his  employer  only, 
and  is  not  liable  to  third  persons  for  damages  re- 
sulting from  accidents  or  injuries  sustained  after 
the  completion  of  the  work.3  The  legal  distinc- 
tion, in  this  connection,  between  a  tort  to  a  third 
person,  predicated  upon  the  omission  of  some  act 
or  obligation  to  the  public  as  such,  and  a  tort 
predicated  upon  a  direct  injury  to  a  specific  third 
person,  has  been  well  stated  to  be  that,  in  the  event 
that  one  "omits  to  do  some  duty  or  obligation 
which  he  owes  to  his  employer  and  which  is  a  tort 
to  a  third  person,  he  is  not  liable,  but  when  he 
commits  a  tort  which  is  an  injury  to  anyone,  there 
is  no  reason  why  he  should  not  be  liable  for  his 
acts  as  anyone  else."  The  writer  so  stating  the 
rule  cites  as  examples  thereof  a  case,  on  the  one 
hand,  of  a  superintendent  of  a  plantation  who 
neglected  and  refused  to  keep  open  a  drain  on  his 
employer's  land,  thereby  flooding  the  lands  of  the 
neighbors  and  damaging  them,  and  who  was  held 
not  to  be  liable  to  the  neighbors ;  and,  on  the  other 
hand,  the  case  of  an  architect  in  charge,  who 
adopted  a  bad  plan  of  construction,  as  the  result 
of  which,  and  by  reason  of  his  negligence,  mis- 
feasance and  failure  to  observe  the  skill  and  care 
imposed  by  law,  a  disaster  resulted,  and  who  was 

3  Mayor  v.  Cunliff,  2  N.  Y.  165 ;  Wait,  Eng.  &  Arch.  Jurispru- 
dence, §  842. 


DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT       69 

held  to  be  responsible  in  damages  to  the  workmen 
injured,  as  well  as  to  the  contractor.4 

§  40.  Plans  and  Specifications. — It  has  already 
been  noted  that,  as  a  result  of  defects  in  his  plans, 
an  architect  may  be  debarred  from  recovering  his 
compensation  for  them  and  it  is  also  true  that  for 
these  defects  he  may  in  addition  be  liable  in  dam- 
ages.5 This  liability,  providing  the  defects  upon 
which  it  is  based  would  be  patent  to  one  skilled  in 
the  art  though  not  apparent,  perhaps,  to  one  lack- 
ing such  expert  training,  would  not,  it  seems,  be 
affected  by  the  fact  that  the  building  had  been 
accepted  and  the  superintendence  of  it  ratified.6 

§  41.  Mistakes. — Where  there  are  mistakes  in 
plans  and  specifications  which  increase  the  cost  of 
the  building  and  which  proper  skill  and  care 
would  have  obviated,  the  architect  is,  apparently, 
liable ; 7  and  likewise  it  has  been  held  to  be  a 
breach  of  the  duty  which  he  owes  to  his  employer, 
if  he  allow  a  foundation  to  be  so  constructed  that 
it  is  not  deep  enough,  or  not  protected  sufficiently 
otherwise,  to  prevent  the  cracking  of  a  wall  which 
it  supports.8 

§  42.  Negligence — Measure  of  Damages. — In 
an  action  to  recover  damages  for  the  negligence 
of  an  architect  in  the  preparation  of  plans,  the 

*Wait,    Eng.    &    Arch.    Ju-  Rep.     (Wash.    Sup.    Ct.    Dec. 

risprudence,     §842,     citing: —  1893),  380. 

Feltus  v.  Swan,  62  Miss.  415,  *  Shipman  v.  State,  43  Wis. 

and    Lottman    v.    Barnett,    62  381. 

Mo.  159.  7  Erskine  v.  Johnson,  23  Neb. 

5  Shipman  v.  State,  43  Wis.  265. 

381 ;    Niver  v.    Nash,   35    Pac.  8  Schreiner     v.     Miller,     67 

Iowa  91. 


70         LAW  OF  ARCHITECTURE  AND  BUILDING 

measure  of  damages  has  been  fixed  at  an  amount 
equal  to  the  difference  between  the  value  of  the 
building,  as  actually  designed  and  constructed, 
and  the  value  as  it  would  have  been,  if  the  build- 
ing had  been  properly  designed  and  constructed.9 

§  43.  Limitation  of  Rule — Architect  not  Liable 
If  Plans  not  Adhered  To. — While  the  rule  is  clear 
that  damages  may  be  recovered  which  are  the  re- 
sult of  defective  plans  and  specifications,  yet  it 
must  not  be  supposed  that  such  damages  can  be 
recovered  if,  in  the  erection  of  the  building  and 
without  the  fault  of  the  architect,  there  has  been  a 
substantial  variance  from  the  plans  and  specifica- 
tions as  submitted  by  the  architect.  This  is  on 
the  theory  that  an  architect,  in  warranting  the 
safety  or  proper  construction  of  the  building 
which  he  designs,  warrants  it  on  the  assumption 
and  understanding  that  all  of  the  substantial  con- 
ditions stated,  shown,  or  included  by  him  in  the 
specifications,  and  which  in  his  opinion  may  be 
necessary  and  essential  to  the  proper  construction 
of  the  building,  shall  be  carried  out  and  observed. 

§  44.  Burden  of  Proof — Illustrations  of  Rule. 
— Where  damage  of  this  character  is  claimed,  the 
burden  is  upon  the  plaintiff  to  prove  a  substantial 
compliance  with  the  plans  and  specifications. 
The  leading  case  on  this  point  and  a  case  in  which 
the  law  is  stated  at  some  length  and  with  great 
clearness  was  decided  by  the  Court  of  Appeals  of 
New  York  State  in  October,  1893.  In  that  case, 

9  Larrimore  v.  Comanche  County  (Tex.  Civ.  Apps.  Sep.  1895) 
32  S.  W.  367. 


DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT       71 

an  action  was  brought  against  the  architects  (a 
firm)  to  recover  damages  claimed  to  have  resulted 
by  reason  of  defective  plans,  specifications,  and 
drawings,  prepared  by  them  for  an  opera  house. 
The  sole  defect  complained  of  was  in  regard  to 
the  plan  of  the  proscenium  arch  which  was  in 
segmental  form,  thirty-six  feet  long  with  a  rise 
of  eight  feet.  It  was  built  of  brick  and,  upon  the 
removal  of  the  cradle  supporting  it,  fell,  necessi- 
tating its  reconstruction.  In  the  court  below,  the 
plaintiff  recovered  as  damages,  a  sum  equal  to  the 
cost  of  rebuilding  it  and  the  added  cost  of  repair- 
ing the  injury  which  its  fall  caused  to  the  other 
parts  of  the  building. 

The  plaintiff,  an  assignee,  based  his  claim  in 
particular  upon  the  failure  of  the  defendants  to 
make  provision  in  the  plans  and  drawings  for 
a  blind  arch  over  the  segmental  arch,  on  the 
theory  that  if  such  had  been  shown  and  provided 
for,  it  would  have  been  constructed  and  no  dam- 
age would  have  resulted.  The  plaintiff  gave  evi- 
dence in  the  court  below  which  tended  to  show 
that  the  fall  of  the  arch  might  have  been  due  to 
the  fact  that  it  was  too  flat  and  that  the  spring 
necessary  for  self-support  in  an  arch  of  the  width 
of  the  one  in  question,  could  not  be  given  by  a  rise 
of  eight  feet  therein.  The  plaintiff  was  also  al- 
lowed to  give  evidence  that  the  arch  was  so 
planned  and  constructed  that  its  thrust  fell  with- 
out, instead  of  within,  the  abutments  upon  which 
it  rested,  and  that  its  fall  may  have  been  due  to 
this  fact  also.  The  plan  of  the  arch  required  that 


72          LAW  OF  ARCHITECTURE  AND  BUILDING 

stone  skew  backs  be  put  in  at  each  heel,  at  the 
points  where  the  arch  met  the  abutments.  It  ap- 
peared that  the  purpose  of  these  skew  backs  was 
to  furnish  a  firm  foundation  for  the  arch  and  to 
distribute  its  thrust  over  a  larger  area  of  the  abut- 
ments. One  of  the  defendants,  a  man  of  large 
experience,  testified  to  the  preparation  of  plans 
for  and  the  building  of  many  theaters  and  opera 
houses  and  the  placing  in  many  of  them  of  seg- 
mental  arches  having  no  greater  rise  than  the  one 
in  question,  without  experiencing  any  difficulties, 
and  he  also  testified  that  he  always  made  provi- 
sion in  such  plans  for  stone  skew  backs  and  con- 
sidered them  elements  of  vital  importance  to  the 
support  of  the  structure.  It  appeared  that  in 
building  the  arch  in  question  these  skew  backs 
were  omitted  and  that  the  responsibility  for  their 
omission  rested  with  plaintiff's  superintendent. 
Experts  testified  that  skew  backs  of  stone  were 
necessary  to  the  proper  construction  of  the  arch, 
bearing  out  the  testimony  of  defendant  on  this 
point.  The  Court  below  submitted  the  question 
to  the  jury  on  the  finding  that  the  arch  fell  on  ac- 
count of  the  omission  of  the  stone  skew  backs, 
holding  that  there  was  sufficient  evidence  to  sup- 
port a  finding  to  that  effect  and  instructing  the 
jury  that  if  they  found  this  to  be  the  case,  the 
plaintiff  could  not  recover.  The  jury  evidently 
did  not  so  find  for  they  gave  judgment  for  the 
plaintiff.  Judge  Maynard  of  the  Court  of  Ap- 
peals in  reviewing  this  decision  said : 


DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT        73 

"But  we  think  it  was  error  to  submit  this  question  to 
the  decision  of  the  jury.  When  it  was  conceded  that  the 
plaintiff's  assignor  had  not  followed  the  plans  in  this 
respect,  and  it  appeared  that  the  failure  to  put  in  the  stone 
skew  backs  may  have  caused  the  loss,  which  the  plaintiff 
is  seeking  to  impose  upon  the  defendants,  they  were 
entitled  to  a  ruling  as  a  matter  of  law,  that  the  plaintiff 
could  not  recover,  and  the  complaint  should  have  been 
dismissed.  He  had  failed  to  establish  a  performance  of 
the  conditons  precedent,  which  was  essential  to  the  sup- 
port of  his  cause  of  action.  One  of  the  principal  allega- 
tions of  the  complaint  had  been  left  unproven.  The  ac- 
tion is  ex  contractu,  and  the  defendants  cannot  be  made 
liable  upon  a  contract  which  they  never  assented  to. 
There  is  no  principle  upon  which  a  case  of  this  kind  can 
be  excepted  from  the  rule,  so  firmly  established,  that 
every  stipulation  which  the  parties  have  inserted  in  a  con- 
tract by  way  of  conditions  to  be  performed  is  to  be 
deemed  material  .  .  .10  The  plaintiff's  assignor  was 
contracting  for  the  exercise  of  the  technical  knowledge 
and  skill  of  the  defendants,  and  it  was  upon  the  infallibil- 
ity of  their  own  judgment  that  the  defendants  relied  when 
they  made  their  guaranty  that  if  the  arch  was  constructed 
in  accordance  with  their  directions  it  would  stand.  They 
regarded  a  stone  skew  back  of  vital  importance  for  its 
security  and  stability,  and  their  promise  to  make  good 
any  loss  which  might  occur  if  it  fell,  was  upon  condition 
that  this  method  of  construction  was  adopted,  and  we 
are  not  permitted  to  say  that  they  would  have  entered 
into  the  agreement  had  they  known  that  these  essential 
supports  were  to  be  omitted. 

"It  is  not  necessary  to  hold  that  a  literal  performance 

10  Citing,  Dauchey  v.  Drake,  v.  Fry,   121   id.  470 ;   Norring- 

85  N.  Y.  407;  Hill  v.  Blake,  97  ton  v.  Wright,  115  U.  S.  188; 

id.  216 ;  Tobias  v.Lissberger,  105  Glaholm  v.   Hays,  2  M.  &  G. 

id.  404;   Bank  of  Montreal  v.  265. 
Recknagel,  109  id.  482;  Clark 


74          LAW  OF  ARCHITECTURE  AND  BUILDING 

of  the  condition  was  required.  A  variance,  confessedly 
immaterial,  or  a  departure  from  the  plans  in  a  separate 
and  independent  part  of  the  building,  having  no  struc- 
tural relation  to  the  defective  member,  would  present 
a  different  case  for  our  consideration.  But  where  the 
variance  is  not  disputed,  and  involves  the  integrity  of  the 
mode  of  construction  of  the  affected  part,  and  is  so  far 
material  that  it  may  have  been  the  direct  cause  of  the 
injury  for  which  the  owner  seeks  to  hold  the  architect 
responsible,  it  must  be  held,  we  think,  that  the  plaintiff 
has  failed  to  establish  the  cause  of  action  upon  which 
he  relies."  " 

In  another  State  the  Court  seems  to  have  gone 
so  far  as  to  substantially  assume,  as  a  matter  of 
legal  inference,  that  the  architect  is  negligent 
where  the  walls  of  a  building  crack  on  account  of 
a  defective  foundation ; 12  but  the  New  York  doc- 
trine would  seem  certainly  to  be  the  more  equi- 
table, safeguarding  as  it  does  the  architect  against 
claims  for  damage  occasioned  through  no  fault  of 
his  own,  considering  fully  each  case  in  the  light 
of  the  special  facts  developed,  and  keeping  more 
clear  the  distinction  between  the  architect  and  the 
owner  and  the  particular  duties  of  each,  in  deter- 
mining whether  the  damage  is  or  is  not  traceable 
to  a  lack  of  skill  or  neglect  on  the  part  of  the  ar- 
chitect. 

§  45.  Repairs  and  Superintendence. — Where, 
on  account  of  defects  or  of  some  oversight  on  the 
part  of  the  architect  it  is  necessary  that  repairs 
be  made,  the  claimant  cannot  make  these  repairs 

11  Lake  v.   McElfatrick,    139         12  Schreiner     v.     Miller,     67 
N.  Y.  349  reversing  46  N.  Y.      Iowa  91. 
St.  Rep.  437,  19  N.  Y.  Supp.  494. 


DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT       75 

at  an  unnecessary  expense,  or  in  an  unnecessarily 
extravagant  form,  and  recover  as  damages  the 
amount  of  his  disbursements  in  so  doing.  He 
must  confine  his  claim  to  such  sum  as  will  repre- 
sent the  cost  of  effecting  the  repairs  as  economi- 
cally as  it  is  possible  to  effect  them,  consistent 
with  proper  workmanship  and  construction.  It 
must  always  be  borne  in  mind,  also,  that  the 
architect  does  not  guarantee  satisfaction,  and 
that  in  the  absence  of  special  circumstances  or 
agreements,  his  duty  is  fulfilled  when  he  has  pre- 
pared the  plans  and  carried  out  the  provisions  of 
his  contract  with  reasonable  skill,  diligence  and 
care. 

§  46.  Reasonable  Care  and  Diligence  Required 
— Illustrations  of  Rule. — The  rule  requiring  the 
exercise  of  reasonable  care  and  diligence  on  the 
part  of  the  architect  in  the  preparation  of  plans  13 
is  equally  applicable  to  his  position  as  superin- 
tendent.14 If  such  reasonable  care  and  diligence 
be  not  observed,  the  architect  will  be  liable  to  the 
owner  for  any  damage  which  may  result  to  the 
latter  by  reason  of  such  neglect.15 

It  is  not  necessary  that  the  architect  give  to  the 
matter  of  superintendence  more  than  reasonable 
and  ordinary  care,  or  exercise  therein  more  than 
reasonable  and  ordinary  diligence;  nor  do  ordi- 

18  Johnson    v.     Wanamaker,  riman  v.  Fowler,  37  N.  J.  L. 

17  Pa.  Sup.  Ct.  301.  89;  Coombs  v.  Beede,  89  Me. 

14  Straus  v.  Buchman  et  al.,  187. 

96  N.  Y.  App.  Div.  270 ;  Gil-  15  Merriman    v.    Fowler,    37 

man  v.   Stevens,  54  How.  Pr.  N.  J.  L.  89;  Lottman  v.  Bar- 

<N.  Y.  Super.  Ct.)   197;  Mer-  nett,  62  Missouri  59. 


76         LAW  OF  ARCHITECTURE  AND  BUILDING 

nary  care  and  diligence  require  that  he  superin- 
tend the  work  so  closely  as  to  follow  every  move- 
ment of  every  workman,  and  be  able  to  discover 
all  variations  of  every  character  from  the  con- 
tract provisions  and  all  defects  in  execution,  in- 
cluding such  defects  as  can  only  be  detected  by 
the  exercise  on  his  part  of  extraordinary  dili- 
gence.16 

To  avoid  the  charge  of  negligence  it  is  not  es- 
sential that  the  architect  prove  the  exercise  of 
"the  utmost  skill  such  as  only  a  few  members  of 
any  profession  attain  to,"  but  he  must  show  what 
"other  architects  will  generally  consider  to  be  a 
reasonable  degree  of  professional  knowledge  and 
skill."  17 

In  this  connection  it  should  be  noted  that  what 
might  perhaps  be  a  reasonable  degree  of  skill  in 
one  locality,  would  not  be  in  another.  For  in- 
stance, the  degree  of  attention  which  an  architect 
may  properly  give  to  country  work,  unhampered 
by  city  ordinances,  would  not  be  at  all  sufficient 
for  work  done  in  a  large  city,  under  local  rules, 
regulations  and  building  ordinances,  which  must 
be  given  strict  attention  by  the  architect,  if  he  is 
to  secure  the  rights  of  his  client  and  the  proper 
conduct  of  the  work. 

It  may  happen  that  the  superintendence  of  a 

19  Petersen    v.    Rawson,    34      Court  463 ;  Vigeant  v.  Scully, 
N.    Y.    370,   reversing   2    Bos-      20  111.  App.  Court  437. 
well,    N.    Y.    234 ;    Hubert    v.          1T  Clark  on  Architecture,  p. 
Aitken,    15   Daly,   N.   Y.   237;      28. 
Stewart  v.  Boehme,  53  111.  App. 


DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT       77 

building  will  be  in  the  hands  of  an  architect  who 
did  not  prepare,  and  had  no  part  in  the  prepara- 
tion of,  the  plans,  but  the  fact  that  the  plans  were 
made  by  another  architect  before  the  superintend- 
ing architect  took  charge,  will  not  relieve  the  lat- 
ter of  responsibility  for  defects  in  the  building  as 
erected  under  his  supervision ; 18  and  while  the  ar- 
chitect is  not  held  to  the  necessity  of  preventing 
every  slightest  shade  of  variation  from  the  plans 
and  specifications,  he  must,  nevertheless,  bestow 
such  care  and  attention  as  may  be  necessary  to 
detect  variations  or  faults  which  are  of  such  a 
character  as  to  be  of  real  importance  and  ma- 
teriality.19 

The  architect  and  the  builder  may  be  jointly 
and  severally  liable  to  the  owner  in  the  case  of 
neglect  attributable  to  them  jointly.  In  New 
Jersey  this  doctrine  has  been  applied  to  the  extent 
of  holding  that,  where  a  joint  neglect  by  the 
builder  and  architect  is  proven,  a  suit  may  be 
maintained  against  the  architect  alone,  and  that 
the  fact  that  the  owner  has,  at  the  same  time,  held 
back  from  the  contractor  a  part  of  the  money  due 
to  the  latter,  upon  the  ground  that  the  contractor 
is  equally  liable  with  the  architect,  will  be  no  bar 
to  the  action  against  the  architect  himself.20  So 
where  a  floor  has  sunk  on  account  of  the  insuffi- 
ciency of  timber  used,  the  architect  and  the  builder 

18  Scott   v.    Christ's    Church      Y.  370;   Wait,   Eng.   &  Arch. 
Cathedral,  i  L.  C  L.  J.  63.         Jur.  §839,  p.  759. 

19  Petersen  v.  Rawson,  34  N.         20  Newman  v.  Fowler,  37  N. 

J.  L.  89. 


78         LAW  OF  ARCHITECTURE  AND  BUILDING 

have  been  held  jointly  and  severally  liable  for  the 
resultant  damages.21 

In  New  York,  in  a  somewhat  similar  case,  de- 
cided in  July,  1904,  where  it  was  proven  that  the 
architect  visited  the  building  as  superintendent  on 
an  average,  substantially,  of  at  least  once  a  day, 
but,  between  his  visits,  important  floor  timbers 
were  placed,  and  in  such  a  manner  as  to  be  in 
direct  violation  of  law,  and  this  occurred  after  the 
owner  had  taken  possession,  and  necessitated  the 
making  of  important  repairs,  the  Court,  stating 
the  rule  that  reasonable  care  and  diligence  must 
be  exercised  by  the  architect  in  the  superintend- 
ence of  the  work,  and  that  the  question  whether 
or  not  the  architect  is  negligent  is  a  question  of 
fact  to  be  passed  upon  by  the  jury,  held  that : 

"It  was  the  duty  of  the  defendants  under  their  con- 
tract with  plaintiff,  not  only  to  see  that  the  beams  were 
properly  placed,  but  especially  to  see  that  the  placing  of 
them  conformed  to  the  requirements  of  the  statute.  This 
they  failed  to  do.  .  .  .  The  evidence  .  .  .  established  the 
fact  that  numerous  and  extensive  repairs  were  made  nec- 
essary by  reason  of  the  defective  work,  the  cost  of  which 
and  other  work  necessary  for  putting  the  building  in  the 
condition  in  which  it  would  have  been  had  the  defendants 
performed  their  contract,  would  have  justified  a  larger 
verdict.  The  plaintiff  was  entitled  to  recover  a  sum 
which  would  leave  him  as  well  off  as  he  would  have  been 
had  the  defendants  fully  performed  their  contract."  22 

The  duty  of  the  architect  in  regard  to  the  ma- 

21  David  v.  McDonald,  8  L.  22  Straus  v.  Buchman  et  al., 
C  (Lower  Canada)  Jurist  44,  96  N.  Y.  App.  Div.  270,  at  273- 
14  L.  C.  Rep.  31.  274,  citing  8  Am.  &  Eng.  Enc. 

of  Law,  2d  ed.  634. 


DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT        79 

terial  used  applies,  of  course,  to  the  character  of 
the  material  itself,  as  well  as  to  the  manner  in 
which  it  is  used  in  the  work  of  construction,  and 
the  measure  of  damages  for  neglect  in  permitting 
the  use  of  inferior  material  or  labor  is  a  sum  equal 
to  that  which  will  be  required  to  properly  repair 
and  make  a  good  job  of  the  work  in  question.23 
Where  by  the  contract  the  superintendent,  as  a 
part  of  his  duties,  is  required  to  furnish  monthly 
estimates  of  the  work  done,  this  provision  is  not 
necessarily,  it  seems,  to  be  taken  as  meaning  that 
"he  must  furnish  correct  and  accurate  estimates," 
the  monthly  estimates  referred  to  being  in  their 
nature  and  of  necessity,  mere  approximations.24 
On  the  broad  general  question  of  the  degree  of 
care  and  diligence  required  of  an  architect  in  the 
performance  of  his  duties  as  superintendent  and 
supervisor  of  construction,  one  of  the  leading 
cases,  if  not  the  leading  case,  in  the  American 
courts,  is  a  case  which  came  before  the  Court  of 
Common  Pleas  of  the  City  and  County  of  New 
York,  in  1889.  Following  the  first  decision  in 
this  case  a  re-argument  was  held  and  the  judg- 
ment affirmed  and  later  the  same  judgment  was 
again  affirmed  in  all  ways  by  the  Court  of  Appeals. 
The  plaintiffs  were  the  architects  who  prepared 
the  plans  for,  and  supervised  the  construction  of, 
the  building.  After  the  completion  of  the  build- 
ing it  was  discovered  that  the  flues,  which  con- 

28  Oilman     v.     Stevens,     54      381,    and    see    i    Redfield    on 
How.  Pr.  (N.  Y.)  197.  R.  R.,  6th  ed.  §  116. 

2*  Shipman  v.  State,  43  Wis. 


8o         LAW  OF  ARCHITECTURE  AND  BUILDING 

nected  with  the  boiler  flues,  were  not  sufficiently 
large  to  meet  the  purposes  for  which  they  had 
been  designed.  The  defendant  claimed  that  no 
recovery  could  be  had  for  the  reason  that  the 
contract  was  entire  and  that  the  plaintiffs  had  not 
performed  their  contract,  in  that  they  were  negli- 
gent in  the  designing  and  construction  of  the 
flues.  The  flues  were  not  omitted  from  the 
plans,  but  were  set  down  with  the  same  detail  as 
were  the  other  parts  of  the  building.  The  Court 
held  that  it  could  not  be  said  that  the  plaintiffs  had 
not  entirely  performed  their  contract  as  to  the 
plans;  that  they  had  performed  it  completely,  but 
that  they  had  performed  it  negligently,  and  that 
while  the  defendant  was  entitled  to  deduct  the 
amount  of  the  damage  caused  by  the  faulty  design 
of  the  chimney  from  the  amount  due  under  the 
contract,  for  the  drawing  of  the  plans  and  the 
superintending  of  the  construction  of  the  house, 
nevertheless,  the  defect  in  construction  could  not 
be  urged  to  defeat  all  recovery  on  the  contract. 
Speaking  of  the  degree  of  diligence  and  care  re- 
quired of  the  architects  in  their  superintending 
capacity,  the  Court  gave  the  following  very  clear 
statement  of  the  law  by  which  the  duties  of  the 
architect,  in  this  respect,  are  governed : 

"The  learned  counsel  would  not  claim  that  an  archi- 
tect is  bound  to  spend  all  his  time  at  a  building  which 
is  going  up  under  his  professional  care,  so  that  no  fraud 
or  negligence  can  be  committed  by  any  of  the  contrac- 
tors. The  counsel  would  not  contend  that  the  architect 
is  an  insurer  of  the  perfection  of  the  mason  work,  the 


DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT       81 

carpenter  work,  the  plumbing,  etc.  He  is  bound  only  to 
exercise  reasonable  care  and  to  use  reasonable  powers 
of  observation  and  detection,  in  the  supervision  of  the 
structure.  When,  therefore,  it  appears  that  the  architect 
has  made  frequent  visits  to  the  building,  and  in  a  gen- 
eral way  has  performed  the  duties  called  for  by  the  cus- 
tom of  his  profession,  the  mere  fact,  for  instance,  that 
inferior  brick  have  been  used  in  places,  does  not  estab- 
lish, as  a  matter  of  law,  that  he  has  not  entirely  per- 
formed his  contract.  He  might  have  directed  at  one  of 
his  visits  that  portions  of  the  plumbing  work  be  packed 
in  wool;  upon  his  next  return  to  the  building  the  pipes 
in  question  might  have  been  covered  with  brick  in  the 
progress  of  the  building.  If  he  had  inquired  whether 
the  wool-packing  had  been  attended  to,  and  had  received 
an  affirmative  answer  from  the  plumber  and  the  brick- 
layer, I  am  of  opinion  that  his  duty  as  an  architect,  in 
the  matter  of  the  required  protection  of  said  pipes  from 
the  weather,  would  have  been  ended.  Yet,  under  these 
very  circumstances,  the  packing  might  have  been  inten- 
tionally or  carelessly  omitted  in  fraud  upon  both  archi- 
tect and  owner,  and  could  it  still  be  claimed  that  the 
architect  had  not  fully  performed  his  work  ?  The  learned 
counsel  for  appellant  is,  in  effect,  asking  us  to  hold  that 
the  defects  of  the  character  above  named  establish,  as 
matter  of  law,  that  plaintiffs  have  not  completely  per- 
formed their  agreement.  An  architect  is  no  more  a  mere 
overseer  or  foreman  or  watchman  than  he  is  a  guarantor 
of  a  flawless  building,  and  the  only  question  that  can 
arise  in  a  case  where  general  performance  of  duty  is 
shown  is  whether,  considering  all  the  circumstances  and 
peculiar  facts  involved,  he  has  or  has  not  been  guilty  of 
negligence.  This  is  a  question  of  fact,  and  not  of  law. 
Upon  consideration  I  am  more  fully  convinced  of  the 
correctness  of  our  conclusions  reached  after  the  former 
argument."  2B 

28  Hubert  v.  Aitken,  5  N.  Y.  Supp.  839,  opinion  Larramore,  C.  J. 


82         LAW  OF  ARCHITECTURE  AND  BUILDING 

Another  leading  case,  also  in  New  York,  and 
decided  by  the  Court  of  Appeals  of  that  State,  is 
illustrative  of  the  same  doctrine.  In  this  second 
case,  through  an  error,  the  front  parlor  windows 
of  a  building  were  so  constructed  so  as  to  be  two 
and  three  quarter  (2^4)  inches  higher  than  was 
shown  by  the  plans,  and  the  same  distance  higher 
from  the  floor  than  the  back  parlor  windows.  It 
appeared  that  the  plaintiff — the  architect — had 
been  diligent  in  his  attention  to  the  details  of 
superintendence,  and  that  the  defect  was  caused 
by  the  masons  not  having  accurately  followed  and 
conformed  to  the  plans  and  specifications.  The 
Court  held,  one  justice  dissenting,  that  the  defects 
in  question  were  not  chargeable  to  the  plaintiff, 
and  that  they  afforded  the  defendant  no  justifica- 
tion for  withholding  from  the  architect  payment 
of  the  amount  agreed  upon  as  the  latter's  compen- 
sation for  his  services.  The  Court  said : 

"The  plaintiff  agreed  to  make  'the  plans,  sections, 
elevations,  specifications,  and  to  superintend  the  progress' 
of  the  building  to  be  erected.  It  was  not  his  duty  to 
do  the  work.  The  agreement  between  the  defendant 
and  his  masons  provides  that  the  masons  'shall  well  and 
sufficiently  erect  and  finish'  the  building  in  question 
'agreeably  to  drawings  and  specifications  made  by  Freder- 
ick Petersen.'  It  was  not  the  duty  of  the  plaintiff  to  'lay 
out'  the  work,  as  it  is  technically  termed.  This,  it  was 
expressly  provided,  should  be  done  by  the  mason,  who 
agrees  'to  lay  out  his  work  himself.' 

840,  affirming  2  N.  Y.  Supp.  and  affirming  opinion  of  Larra- 
711 ;  15  Daly  (N.  Y.)  237  (in-  more,  C.  J.)  ;  judgment  affirmed 
eluding  both  original  opinion  without  opinion,  123  N.  Y.  655. 


DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT       83 

"The  plaintiff  was  bound  to  furnish  the  plans,  speci- 
fications and  elevations,  and  the  mason  was  bound  to  lay 
out  the  work.  In  other  but  perhaps  not  plainer  words, 
the  plaintiff  was  bound  to  put  down,  and  to  show  on 
paper,  how  every  part  was  to  be  built,  and  the  mason 
was  to  stake  it  out,  measure  his  lumber,  and  make  actual 
measurements  on  the  ground  and  in  the  erection  for  such 
building.  I  do  not  think  it  was  the  duty  of  the  plaintiff 
to  measure  the  joists  or  timbers  of  which  the  different 
stories  were  to  be  constructed,  and  to  determine  by  actual 
measurement  that  the  ceiling  of  the  first  story  had  an 
elevation  of  thirteen  feet,  and  the  second  had  an  eleva- 
tion of  eleven  feet,  or  to  measure  the  thickness  and  depths 
of  the  brick  or  stone  walls.  .  .  .  The  first  story  windows 
in  the  front  parlor  were  to  be  sixteen  inches  from  the 
floor,  and  the  windows  themselves  were  probably  ten 
or  eleven  feet  in  height.  The  plaintiff  came  from  day 
to  day  to  superintend  the  progress  of  the  work,  and  while 
thus  superintending,  was  he  bound  to  have  ascertained 
that  the  window  sills  in  the  front  parlor  were  two  and 
three-quarter  inches  higher  from  the  floor,  than  was 
authorized  by  the  plan?  To  an  inexperienced  eye  the 
difference  would  not  have  been  perceptible;  but  should 
the  knowledge  and  skill  of  a  good  architect  at  once  have 
detected  it?  The  testimony  is  not  satisfactory  to  estab- 
lish the  affirmative  of  this  proposition.  Wm.  Thomas, 
an  archiect,  says,  'that  he  does  not  consider  that  the  build- 
ing has  been  properly  superintended.  If  it  had  been, 
the  mistake  would  have  been  found  out  when  the  first 
story  beams  were  on.  Comparing  the  second  story 
beams,  I  should  have  found  it  out.'  Mr.  Windham,  an 
architect,  thinks  the  difference  in  height  between  the  par- 
lor windows  in  front  and  in  rear,  ought  to  have  been 
discovered  as  soon  as  they  began  to  lay  the  brown  stone 
in  front.  Mr.  Ritch,  on  the  other  hand,  also  an  architect, 
says,  'that  it  is  impossible  to  say  when  the  error  should 
have  been  discovered.  It  might  have  passed  the  observa- 


84         LAW  OF  ARCHITECTURE  AND  BUILDING 

tion  of  the  architect,  till  the  building  was  completed.  It 
is  an  error  likely  to  pass  any  one's  observation.  It  would 
most  likely  pass  his  notice  until  the  cornices  were  put 
up.'  These  were  the  only  architects  who  testified  on 
this  point.  It  was  proved  by  various  witnesses  that  the 
plaintiff  was  diligent  in  his  attendance  upon  the  building. 
The  respectable  and  intelligent  referee  who  had  the  wit- 
nesses personally  before  him,  and  was  able  to  form  a 
better  opinion  of  their  intelligence  and  integrity  than  one 
who  did  not  see  them,  must  have  held  that  the  plaintiff 
was  not  bound  to  have  discovered  this  defect.  Mr.  Trap- 
hagen  testified  that  he  told  the  plaintiff  the  balcony  was 
too  high,  and  that  he  said  it  was  all  right.  He  was  one 
of  the  contractors  for  the  mason  work,  and  it  was  ap- 
parently a  question  whether  the  fault  was  on  his  part  or 
that  of  the  plaintiff.  The  referee  did  not  rely  on  his  evi- 
dence. He  found  that  the  plaintiff  had  bestowed  as  much 
personal  attention  upon  the  building  as  was  necessary, 
and  that  the  variations  mentioned  were  not  caused  by 
carelessness,  negligence  or  inattention  on  his  part.  I  do 
not  find  it  necessary  to  differ  with  him."  26 

It  will  sometimes  happen  that  a  change  of  more 
or  less  importance  which  has  been  requested  by 
the  owner,  as  for  instance  a  change  in  the  location 
of  gas  or  electric  outlets,  may  be  overlooked  by 
the  architect.  If  the  change  be  spoken  of  and 
brought  to  the  attention  of  the  architect  before 
the  plans  and  specifications  are  approved  and  then 
these  plans  and  specifications,  not  including  the 
change,  are  examined  and  approved  by  the  owner, 
the  latter,  by  his  approval,  following  his  examina- 
tion of  them,  may  estop  himself  from  later  claim- 
ing damages  from  the  architect  for  the  latter's 

26  Petersen  v.  Rawson,  34  N.  Y.  370,  at  pages  372,  373  and 
374- 


DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT       85 

failure  to  provide  the  change  required.  This  rule 
would  not  be  applicable  to  a  situation  where  the 
owner,  to  the  knowledge  of  the  architect,  signed 
the  contract  and  approved  the  plans  and  speci- 
fications without  reading  or  examining  them, 
and  in  reliance  on  the  assurance  of  the  archi- 
tect that  everything  necessary  and  desired  had 
been  included  and  provided  for.  Where  the 
change  is  requested  after  the  plans  and  specifica- 
tions have  been  approved  and  the  contract  signed, 
it  is  the  duty  of  the  architect  to  see  that  the  proper 
instructions  of  his  client  are  carried  out,  the  work 
under  these  circumstances  being  in  the  nature  of 
an  extra ;  and  for  negligence  or  improper  skill  or 
lack  of  diligence  in  carrying  out  the  directions  of 
the  owner,  the  architect  will  be  liable  within  the 
ordinary  rule  requiring  the  exercise  by  him  of 
reasonable  skill  and  diligence. 

The  architect  cannot  escape  liability  for  damage 
resulting  from  steps  taken  subject  to  his  direc- 
tion or  on  his  advice  and  approval,  on  the  mere 
plea  that  he  was  not  present  when  the  damage  re- 
sulted ;  and  where  a  wall  fell  as  a  result  of  a  jack- 
screw  worked  under  the  supervision  of  one  em- 
ployed by  the  owner  on  the  advice  of  the  architect, 
and  subject  to  the  latter's  direction,  and  it  was 
shown  that  the  architect  approved  the  use  of  the 
jackscrew,  he  was  held  liable  in  damages  for  the 
death  of  a  workman  as  a  result  of  the  falling  of 
the  wall,  despite  the  fact  that  the  architect  was 
not  present  at  the  time  the  accident  occurred.27 

27  Lottman  v.  Bafnett,  62  Mo.  159. 


86         LAW  OF  ARCHITECTURE  AND  BUILDING 

§  47.  Negligence  a  Question  of  Fact. — The 
question  whether  there  has  or  has  not  been  negli- 
gence or  want  of  skill  in  a  given  case  is  a  ques- 
tion of  fact  and  not  of  law ; 28  but  the  matter  of 
negligence,  while  a  question  of  fact,  and,  conse- 
quently, a  question  for  the  jury,  should  not  be  left 
to  the  latter  in  such  a  way  as  to  refer  to  them  the 
question  of  what  it  is  proper  or  improper  in  the 
broad  sense  for  the  architect  to  do,  entirely  unre- 
strained by  the  evidence  or  special  circumstances 
of  the  case.  Where,  on  the  facts,  it  appears  that 
the  architect  has  used  reasonable  diligence,  care, 
and  skill,  it  is  improper  to  leave  it  to  the  jury  to 
decide  whether  he  has  properly  performed  his 
duties.29 

§  48.  Burden  of  Proof. — The  burden  of  proof 
in  a  proceeding  to  recover  damages  for  negligence 
or  want  of  skill  on  the  part  of  the  architect  is  upon 
him  who  seeks  to  establish  it.30  On  the  other 
hand,  it  is  no  answer  to  a  charge  of  negligence  to 
plead  reliance  on  the  statements  of  others.31 

§  49.  Architect  as  Arbitrator. — In  many  cases 
the  architect  will,  under  the  terms  of  his  contract, 
be  called  upon  to  act  as  referee  or  arbitrator  in  the 

28  Straus     v.     Buchman,    96  80  Oilman     v.     Stevens,     54 

N.  Y.  App.  Div.  270;  Hubert  How.   Pr.    (N.  Y.   Supr.  Ct.) 

v.  Aitken,  15  Daly  (N.  Y.)  237;  197  at  207. 

19  N.  Y.  St.  Rep.  914;  2  N.  Y.  31  Moneypenny    v.    Hartland 

Supp.  711,  affirmed   (on  re-ar-  I     C.     &     P.     (Carrington     & 

gument)  5  N.  Y.  Supp.  839,  15  Payne)    352;   2   C.   &   P.   378; 

Daly  (N.  Y.)  241,  affirmed  by  Hubert  v.  Aitken,  15  Daly  (N. 

Court  of  Appeals,   123   N.  Y.  Y.)  237,  judg.  aff'd,  123  N.  Y. 

655-  655,  supra. 

28Vigeant  v.   Scully,  20  111. 
Apps.  437. 


DUTIES  AND  LIABILITIES  OF  THE  ARCHITECT        87 

determination  of  some  question  arising  during 
the  progress  of  the  work.  In  such  an  event  a 
new  rule  of  law  is  to  be  considered,  namely,  that  a 
judicial  officer  is  not  liable  in  matters  connected 
with  the  exercise  of  his  judicial  duties,  provided, 
and  so  long  as,  he  exercises  these  duties  honestly. 
This  rule  includes  not  only  judges  of  courts,  but 
all  officers  in  general  who  are  necessarily  called 
upon  to  exercise  duties  of  a  judicial  or  quasi-judi- 
cial nature  or  duties  to  be  performed  in  accord- 
ance with  the  dictates  of  their  judgment.32 
Where,  therefore,  an  architect  "undertakes  to 
give  a  decision  as  to  any  matter,  though  he  may 
not  be  an  arbitrator  in  a  strict  sense  of  the  word, 
and  is  not  bound  to  exercise  all  the  judicial  func- 
tions an  arbitrator  would  have  to  exercise,  never- 
theless, he  is  not  liable  to  an  action  for  want  of 
skill."  33 

§  50.  Certificates. — Many  of  the  more  impor- 
tant questions,  of  interest  to  the  architect  in  the 
matter  of  the  issuance  of  certificates,  arise  as  be- 
tween him  and  the  builder,  or  in  actions  by  the 
builder  against  the  owner  to  recover  the  contract 
price.  These  questions  are  considered  elsewhere.34 

The  architect  is,  however,  under  certain  definite 
duties  and  liabilities  to  the  owner  with  respect  to 
the  issuance  of  certificates  and,  in  issuing  them, 

82  Jones  v.  Brown,  54  Iowa  83Wait,  Eng.  &  Arch.  Jur., 

74;  Pappa  v.  Rose,  L.  R.  7  C.  §846;  Pappa  v.  Rose,  L.  R.  7 

P.   32 ;    I    Eng.   Rep.  87,   aff'd  C.  P.  32,  525,  supra. 

L,  R.  7  C.  P.  525,  3  Eng.  Rep.  **  See  §§  11,  55,  66,  95,  97,  98, 

375;  Wait,  Eng.  &  Arch.  Jur.  99,  114. 
§  844 ;  Mechem  on  Public  Offi- 
cers, §§  638-639- 


88         LAW  OF  ARCHITECTURE  AND  BUILDING 

he  must  exercise  that  same  reasonable  care  and 
diligence  which  is  required  of  him  in  the  prepara- 
tion of  his  plans  and  in  the  supervision  of  the 
work  of  construction.  This  rule  has  been  ap- 
plied to  circumstances  where  the  contractor  failed 
and,  as  a  result  of  his  failure,  the  owner  was  com- 
pelled to  complete  the  work  at  an  expense  exceed- 
ing the  amount  of  the  balance  due  to  the  con- 
tractor. It  appeared,  in  the  case  referred  to,35 
that  the  architect  had  given  certificates  in  the 
amount  of  $2,950.00  when  he  should  have  only 
certified  the  sum  of  $2,295.00.  The  owner  was 
allowed  to  deduct  from  the  amount  paid  the  archi- 
tect for  his  services,  the  excess  amount  which  he 
had  paid  to  the  contractor  as  a  result  of  the  error 
in  certification.  This  doctrine  of  the  liability  of 
the  architect  in  the  matter  of  the  issuance  of  cer- 
tificates, based  upon  his  neglect  to  use  reasonable 
care  and  diligence,  should  be  construed  and  read 
in  the  light  of  the  fact  that  where  no  special  man- 
ner of  inspection  is  specified  in  the  contract  the 
courts,  in  at  least  one  of  the  States,  have  held  that 
there  is  no  duty  imposed  upon  the  architect  to 
make,  before  issuing  a  certificate,  a  special  inspec- 
tion of  the  work  done,  sufficiently  detailed  to 
satisfy  him  not  only  that  the  work  covered  by  the 
particular  certificate  in  question  has  been  per- 
formed, but  that  it  has  been  performed  properly 
and  in  accordance  with  the  contract  require- 
ments.36 

86  Irving  v.  Morrison,  27  C.          36  Vigeant  v.   Scully,  20  111. 
P.  (Upper  Canada)  242.  App.  437. 


CHAPTER  V 

DEATH  OF  ARCHITECT  AND 
OWNERSHIP  OF  PLANS 

§  51.  Death  of  Architect. — The  contract  be- 
tween the  owner  and  the  architect,  as  in  the  case 
of  any  other  contract  or  relationship  of  a  profes- 
sional character,  is  in  its  very  nature  personal, 
and  it  follows,  accordingly,  that  where  the  archi- 
tect dies  before  the  work  on  which  he  is  engaged 
has  been  completed,  the  right  to  complete  the 
work  does  not  survive  to  his  executor,  and  that, 
on  the  other  hand,  the  owner  can  not,  under  such 
circumstances,  impose  upon  the  executor  a  lia- 
bility to  perform  it.1  This  rule  does  not  mean, 
however,  that  where,  under  his  contract  with  the 
owner,  the  architect  has,  at  the  time  of  his  death, 
already  earned  and  become  entitled  to  a  part  of 
his  compensation,  the  executor  can  not  protect 
the  estate  in  this  connection;  and  where  one  em- 
ployed as  a  consulting  engineer  had  partly  com- 
pleted, prior  to  his  death,  the  work  on  which  he 
was  engaged  and,  under  his  contract  of  employ- 
ment, had  earned  certain  of  the  installments  in  the 
form  of  which,  quarterly,  it  was  agreed  that  his 
compensation  should  be  paid  to  him,  his  personal 
representative  was  allowed  to  recover  from  the 

i  Stubbs  v.  Hollywell  R.  Co.,     Hall  v.  Wright,  96  E.  C.  L. 
L.   R.  2  Exch.  311;   and   see      746. 

89 


90          LAW  OF  ARCHITECTURE  AND  BUILDING 

employer  the  amount  of  the  installment  which  had 
been  earned  at  the  time  of  the  death  of  the 
engineer.2 

§  52.  Ownership  of  Plans. — Whether  the  plans 
prepared  by  the  architect  are  to  be  considered  his 
property,  or  the  property  of  his  client,  is  a  ques- 
tion of  long  standing  between  them.  As  a  prac- 
tical matter  the  architects,  by  insisting  on  their 
claim  that  the  plans  are  their  property,  seem  to 
have  induced  the  public  generally  to  acquiesce  in 
this  point  of  view.  As  a  matter  of  fact,  however, 
unless  there  be  a  specific  provision  in  the  contract 
whereby  it  is  agreed  that  the  plans  are  to  be  and 
remain  the  property  of  the  architect,  they  must  be 
legally  considered,  it  seems,  as  the  property  of  the 
employer  who  has  ordered,  accepted,  and  paid  for 
them.3  This  is  on  the  perfectly  logical  theory 
that  the  plans  are  an  essential  part  of  the  building 
contract,  and  that  while  the  architect,  under  the 
rule  that  work  embodied  in  some  material  form 
and  resulting  from  an  individual's  mental  concep- 
tion and  labor  is  to  be  considered  the  property  of 
the  one  creating  it,  has  property  rights  in  the 
plans  prepared  by  him,  yet  when  these  plans  have 
been  prepared,  pursuant  to  his  employment,  and 
the  services  expended  in  their  production  have 
been  paid  for,  and  the  plans  published  to  the  world 
by  riling  or  otherwise,  the  right  of  ownership  in 

2Stubbs  v.  Hollywell  R.  Co.  delphia,     9     Philadelphia,     Pa. 

L.  R.  2  Exch.  311,  supra.  550;  Wright  v.  Eisle,  86  N.  Y. 

8Moffatt  v.    Scott,   8   L.    C.  A.  D.  356. 
Jur.   310;    Windrim   v.    Phila- 


DEATH  OF  ARCHITECT  — OWNERSHIP  OF  PLANS      91 

the  plans  passes  from  the  architect  to  the  client 
who  has  employed  him.  The  New  York  court 
has  stated  the  matter  well  in  the  case  last  cited,4 
where,  citing  and  quoting  from  a  decision  5  affirm- 
ing the  rule  that 

"Every  new  and  innocent  product  of  mental  labor 
which  has  been  embodied  in  writing  or  some  other  ma- 
terial form,"  is  "the  exclusive  property  of  its  author,  the 
law  securing  it  to  him  and  restraining  any  other  person 
from  infringing  his  right," 

the  Court  goes  on  to  say  that,  nevertheless,  where 
the  architect  prepares  plans  and  specifications  and 
files  them  with  the  Building  Department  and 
superintends  the  construction  of  the  house  and  re- 
ceives his  compensation,  he  has,  thereby, 

"published  his  work  to  the  world  and  can  have  no  ex- 
clusive right  in  the  design  or  in  its  reproduction.  .  .  . 
It  seems  to  us  that  all  of  the  property  rights  in  these 
plans,  if  they  had  any  value  as  property  after  the  publi- 
cation, belonged  to  Litson  (the  client),  rather  than  to  the 
plaintiff  (the  architects)  in  this  action  .  .  ." 

It  is  of  interest  to  note  that  Article  7  of  the 
new  Standard  Form  of  the  General  Conditions 
of  the  Contract,  issued  by  the  American  Institute 
of  Architects,  and  included  in  Appendix  B,  pro- 
vides that:  "All  drawings,  specifications  and 
copies  thereof,  furnished  by  the  architect,  are  his 
property.  They  are  not  to  be  used  on  other  work 
and,  with  the  exception  of  the  signed  contract  set, 

*  Wright  v.  Eisle,  86  N.  Y.         8  Palmer  v.   DeWitt,  47   N. 
A.  D.  356.  Y.   532,   citing   Shortt   on   the 

Law  of  Literature,  48. 


9^         LAW  OF  ARCHITECTURE  AND  BUILDING 

are  to  be  returned  to  him  on  request,  at  the  com- 
pletion of  the  work.  All  models  are  the  prop- 
erty of  the  owner."  While  the  parties  to  the  con- 
struction contract  and  general  conditions  are  the 
owner  and  the  contractor,  rather  than  the  owner 
and  the  architect,  the  provisions  quoted  are  never- 
theless indicative  of  a  realization  of  the  necessity 
of  a  definite  agreement  in  regard  to  the  plans, 
if  the  rights  of  the  architect  therein  are  to  be 
properly  protected.  To  prevent  the  urging  of  the 
possible  argument  that  as  between  the  owner  and 
the  architect,  unless  the  latter  be  a  party  to  the 
contract  and  general  conditions,  there  would  be 
no  consideration  for  the  agreement  of  the  owner 
recognizing  the  property  rights  of  the  architect 
in  the  plans,  it  is  advisable  that  a  memorandum 
of  agreement  in  this  connection  be  entered  into 
direct  between  the  architect  and  the  owner. 
Under  such  circumstances,  no  such  technicality 
could  be  urged  to  defeat  the  intent  of  the  parties 
as  outlined  in  the  agreement  between  them. 


PART  II 
THE  OWNER  AND  THE  CONTRACTOR 


CHAPTER  I 
IN  GENERAL 

§  53.  Introductory. — Many  of  the  mutual 
rights  and  duties  of  the  owner  and  the  builder, 
especially  in  the  matter  of  extras,  superintend- 
ence, certificates  and  the  like,  have  been  already 
referred  to.  The  lien  rights  of  the  contractor,  of 
the  subcontractor,  and  of  the  material-man,  will 
be  considered  separately  under  "Liens"  and  in 
such  detail  that  it  will  not  be  necessary  to  advert 
to  them  here.  A  brief  summary  of  some  of  the 
matters  already  discussed,  in  their  relation  purely 
to  the  duties  and  rights  of  the  owner  and  builder, 
is,  however,  appropriate  at  this  point,  before  en- 
tering upon  a  detailed  discussion  of  the  construc- 
tion contract. 

§  54.  Compensation  of  Builder — Extras  and 
Modification  of  Contract. — A  very  considerable 
number  of  the  differences  arising  between  the 
owner  and  contractor  may  be  traced  directly  to 
the  matter  of  extras.  It  is  quite  natural  that 
this  should  be  the  case,  inasmuch  as  it  is  in  con- 
nection with  extra  work,  especially,  that  the 
owner  of ttimes  feels  that  the  expense  of  the  work 
is  being  added  to  needlessly  or  improperly  and,  on 
the  other  hand,  the  contractor  feels  that  he  is  be- 
ing called  upon  to  perform  work  not  included  or 

95 


96         LAW  OF  ARCHITECTURE  AND  BUILDING 

contemplated  in  the  original  contract  and  for 
which  he  should  receive  full  pay.  To  support  the 
right  of  the  contractor  to  recover  for  extra  work 
and  the  liability  of  the  owner  to  pay  for  same,  it 
must  be  shown,  as  the  very  basis  of  such  recovery 
and  liability,  that  the  work  done  was  properly 
authorized  and  that  the  authority  was  granted 
and  the  work  done  under  such  circumstances  as 
to  expressly  or  impliedly  charge  the  owner  with 
such  knowledge  and  approval  and  acceptance 
thereof,  as  will  legally  render  him  liable  to  the 
contractor  for  the  reasonable  or  agreed  cost  of 
the  work. 

If  the  owner  himself  authorize  extra  work 
direct  there  can,  of  course,  be  no  question  of  his 
liability  to  pay  for  same — if  the  price  be  agreed 
upon,  upon  the  theory  of  the  specific  contract  so 
made ;  in  the  absence  of  an  agreement  as  to  price, 
upon  the  theory  of  quantum  meruit.  It  is  prob- 
ably more  often  the  case,  however,  that  it  is  the 
architect  who  authorizes  extra  work  and  where 
this  is  done  there  is  at  once  added  to  the  situa- 
tion another  element,  namely,  the  agency  of  the 
architect  and  his  right  and  authority  thereunder 
to  bind  the  owner  for  the  additional  work  author- 
ized. A  somewhat  detailed  discussion  on  this 
point  has  already  been  had.1 

The  questions  which  arise  in  this  connection 
usually  relate  to  or  depend  upon  the  terms  of  the 
building  contract  and,  in  so  far  as  this  is  the  case, 

1  Part  I,  Chapter  II,  "The  Architect  as  Agent  of  the  Owner," 
pp.  12-35. 


IN  GENERAL  97 

they  are  considered  in  the  next  two  ensuing  chap- 
ters which  are  devoted  to  that  contract.  It  has 
been  seen  that  the  general  rule  is  that  it  is  the 
primary  duty  of  the  architect,  engaged  to  super- 
intend the  construction  of  a  building,  to  see  that 
the  contract  between  his  client  and  the  builder  is 
carried  out  in  strict  accordance  with  its  terms, 
and  that  the  architect,  in  the  absence  of  special 
authorization,  is  not  clothed  with  any  right  or 
authority  whatsoever  to  change  or  to  alter  or  to 
modify  the  terms  of  that  contract,  or  to  make  new 
contracts  which  involve  additional  expense,  or  to 
authorize  alterations  in  the  plans  and  specifica- 
tions as  already  agreed  to,  or  extra  work  or  ma- 
terial not  specified  in  the  original  contract.2 

It  has  been  seen,  also,  that  although  the  owner 
may,  if  he  desire,  constitute  the  architect  his 
general  agent  and,  by  declaring  him  to  be  broadly 
the  general  agent  of  the  owner,  invest  him  with 
authority  to  bind  the  owner  for  extras  or  altera- 
tions, yet  this  is  but  an  exception  which  proves  the 
general  and  well  established  rule  that  the  em- 
ployment of  the  architect  does  not,  in  itself,  con- 
stitute him  the  general  agent  of  the  client,  but  that 
his  agency  is  limited  directly  by  the  terms  and 
provisions  of  the  understanding  and  agreement 
existing  between  his  client  and  himself.3 

The  fact  that  the  work  done  unexpectedly 
proves  to  be  more  expensive  for  the  contractor 
than  he  anticipated,  or  that  he  meets  difficulties 

2  See    Part    I,    Chapter    II,         »Part   I,   Chapter   II,   page 
pp.  12-25,  and  cases  cited.  17,  and  cases  cited. 


g8         LAW  OF  ARCHITECTURE  AND  BUILDING 

for  which  he  has  not  provided,  is  not,  in  itself, 
any  justification  for  an  additional  charge  by  him 
to  cover  the  extra  expense  with  which  he  may  be 
burdened  under  such  circumstances.  If  his  con- 
tract be  explicitly  based,  in  whole  or  to  a  material 
extent,  on  the  estimates  of  the  engineer  or  archi- 
tect of  the  quantity  of  the  material  which  it  will  be 
necessary  to  use  or  of  the  character  of  the  work, 
and  the  work  necessary,  or  the  quantity  of  ma- 
terial necessary,  prove  to  be  in  excess  of  the 
amount  estimated,  or  the  work  prove  very  ma- 
terially different  in  its  character  from  the  pre- 
liminary description  given  of  it  by  the  architect, 
the  contractor  may  reasonably  claim  that  if  he  is 
to  perform  the  extra  work  made  necessary  by  such 
unexpected  conditions  and  by  the  variances  be- 
tween the  actual  facts  and  the  representations  of 
the  architect,  it  is  but  proper  that  he  be  reim- 
bursed for  the  additional  expense  which  such 
extra  work  will  entail.  This  claim  may  be  met 
successfully  by  the  owner  if  it  be  shown  that  it 
was  agreed,  or  specifically  understood  by  the 
builder,  that  the  estimates  of  the  architect  or  en- 
gineer were  merely  approximate  and  that  the  con- 
tractor was  expected  to  investigate  conditions  and 
enter  into  the  contract,  not  in  reliance  upon  any 
representations  or  estimates  of  the  architect  or 
engineer,  but  as  a  result  of  his  own  investigations 
and  judgment. 

If,  however,  the  additional  cost  of  construction, 
and   the   unexpected   conditions   from   which   it 


IN  GENERAL  99 

arises,  are  the  result  of  some  act  or  omission  on 
the  part  of  the  owner,  without  fault  on  the  part 
of  the  builder,  the  latter  may  recover  for  the  extra 
expense  to  which  he  may  be  put  in  completing  the 
contract  under  the  altered  conditions.  For  in- 
stance, if  the  owner,  by  neglecting  to  take  proper 
care  of  an  adjoining  piece  of  property  owned  by 
him,  were  to  allow  leakage  or  other  conditions 
which  would  undermine  or  deleteriously  affect  the 
work  being  done  by  the  contractor,  and  the  con- 
tractor, as  a  result  of  such  conditions,  should  be 
put  to  additional  expense  in  completing  his  con- 
tract, for  shoring  or  additional  excavation  work 
or  the  like,  he  might  well  maintain  an  action 
against  the  owner  for  such  additional  expense, 
even  though  in  the  contract  itself  it  had  been  spe- 
cifically stated  that  the  estimates  of  the  architect 
and  his  representations,  in  regard  to  the  character 
of  the  work,  and  of  the  property,  were  approxi- 
mate only,  and  that  the  contractor  had  himself  in- 
vestigated conditions  and  had  entered  into  the 
contract  solely  as  a  result  of,  and  in  reliance  upon, 
his  own  investigations  and  judgment.  The  mere 
fact  that  the  contractor  had  investigated  condi- 
tions and  had  not  depended  upon  the  architect's 
estimates  or  statements  would  not,  under  such 
circumstances,  excuse  the  owner,  for  the  reason 
that  the  contractor,  in  making  his  investigation 
and  decision,  had  the  right  to  assume  and  believe 
that  the  owner  would  not,  by  his  own  neglect  or 
omission  in  respect  to  the  adjoining  property, 


ioo        LAW  OF  ARCHITECTURE  AND  BUILDING 

create  new  and  unforeseen  conditions  involving 
additional  expense.4 

It  should  be  remembered  that  there  is  a  distinc- 
tion between  extra  work  agreed  upon  or  made 
necessary  after  the  contract  has  been  executed 
and  put  in  force,  and  extra  work  which  is  pro- 
vided for  under  the  first  preliminary  understand- 
ing has  been  reached,  but  before  the  contract  has 
actually  become  effective.  In  the  latter  case,  the 
extra  work  would  entail  merely  a  modification  of 
the  proposed  contract  and  a  change  in  the  charac- 
ter of  the  work,  taking  effect  before  the  final  ac- 
ceptance of  the  contract.  Such  work  should  not 
really  be  termed  extra  work  at  all,  in  the  ordinary 
sense  in  which  that  term  is  employed  in  building 
contracts  and  relationships,  for  the  reason  that 
the  provisions  in  regard  to  it  have  become  merged 
in,  and  terms  of,  the  contract,  as  finally  agreed 
upon.  For  such  work  no  recovery  can  be  had.5 

The  builder  as  one  of  the  parties  to  the  con- 
struction contract,  is  chargeable  with  notice  of  its 
provisions,  and  where  the  contract  provides  that 
no  alterations  are  to  be  made  except  upon  the 
written  order  of  the  architect,  evidence  offered,  in 
behalf  of  the  builder,  that  the  architect  has  orally 
allowed  certain  changes  in  material  to  be  made,  is 
not  competent  as  proof  of  a  waiver  by  the  client 
of  the  express  provisions  of  the  contract.  This 
rule  will  be  applied  even  in  cases  where  the  archi- 

*  Sundstrom    v.    The    State,          8  Marx  v.  White  Co.,  143  N. 
213  N.  Y.  68,  reversing  159  N.      Y.  Supp.  1036. 
Y.  A.  D.  241. 


IN  GENERAL  101 

tect  may  be  an  officer  of  the  corporation  for  which 
he  is  acting  as  architect,  and  the  corporation  will 
not,  even  under  such  conditions,  be  compelled  to 
recognize,  as  extra  work,  work  done  pursuant  to 
the  oral  permission  of  the  architect  when,  under 
the  express  terms  of  the  written  contract,  the  con- 
tractor is  chargeable  with  notice  of  the  fact  that 
the  authority  of  the  architect  in  connection  with 
the  construction  work  is  limited  to  his  position  as 
architect.6  Where  it  appears  that  it  is  necessary 
that  extra  work  be  done  which  is  of  such  a  nature 
as  to  vitally  affect  the  whole  contract,  and  a  sup- 
plemental agreement  for  the  doing  of  such  addi- 
tional work  is  entered  into  accordingly,  the  term 
of  the  original  contract  will,  by  implication,  be 
extended  by  the  time  which  is  reasonably  neces- 
sary for  the  proper  performance  of  the  supple- 
mental agreement  and  the  completion  of  the  ad- 
ditional work  thereby  provided  for.7 

§  55.  The  Architect's  Certificate. — If  the  con- 
tract provide,  as  a  condition  precedent  to  the  right 
of  the  contractor  to  recover,  that  he  shall  receive 
the  certificate  of  the  architect  certifying  to  the 
proper  completion  of  the  work,  no  recovery  by  the 
contractor  will  ordinarily  be  allowed  where  he 
fails  to  produce  such  certificate  or  to  prove  that  it 
has  been  issued  by  the  architect.  If,  however,  the 
contractor  show  that  the  refusal  of  the  architect 
to  issue  the  certificate  has  been  unreasonable,  and 

•Traitel  Marble  Co.  v.  T  N.  Y.  State,  etc.,  Bank  v. 
Brown  Bros.  Inc.,  159  N.  Y.  Whitehall  Water,  etc.,  Co., 
A.  D.  485-  161  N.  Y.  A.  D.  304. 


102        LAW  OF  ARCHITECTURE  AND  BUILDING 

in  bad  faith,  the  general  rule  will  not  be  applied 
and  the  contractor  will  be  allowed  to  recover  upon 
proof  of  these  facts,  and  of  the  fact  that  he  has 
complied  with  the  terms  of  the  contract  in  all  sub- 
stantial particulars.8  Similarly,  an  objection 
that  the  certificate  has  not  been  issued  will  be  met 
by  proof  that  the  owner  has,  directly  or  indi- 
rectly, waived  this  provision  of  the  contract.9 

Excuse  or  waiver  are  facts  which  must  be 
clearly  proven,  however,  to  be  effective,  and  if 
the  contract  provide  that  the  production  of  the 
architect's  certificate  is  to  be  a  condition  precedent 
to  recovery  by  the  contractor,  no  recovery  will  be 
allowed  where  the  complaint  fails  to  allege  the 
issuance  of  the  certificate,  or  an  excuse  for  its 
non-production,  or  a  waiver  of  its  production,10 
and  this  notwithstanding  the  fact  that  there  may 
be  evidence  that  the  architect  was  at  the  building 
but  seldom,  and  that  prior  payments  had  been 
made  to  the  contractor  during  the  course  of  the 
work  without  the  production  by  him  of  the  certifi- 
cates of  the  architect.11 

Where,  however,  upon  the  contractor  failing  to 
complete,  the  owner  completes  the  work,  the  fact 

8  MacKnight,  etc.,  Co.  v.  The  9  Diehl    v.    Schmalacker,    26 

Mayor,  160  N.  Y.  72;  Thomas  Misc.    (N.    Y.)    835;    Fay   v. 

v.    Stewart,    132    N.    Y.    580;  Muhlker,  i  Misc.  (N.  Y.)  321 ; 

Flaherty  v.  Miner,  123  N.  Y.  Uvalde,    etc.,    Paving    Co.    v. 

382;  Bowery  National  Bank  v.  Central,  etc.,  Co.,  84  N.  J.  L. 

The  Mayor,  63  N.  Y.  336 ;  Peo-  297 ;  Schmulbach  v.  Caldwell  et 

pie     ex    rel.     Rapid     Transit,  al.,  215  Fed.  Rep.  70. 

etc.,    Co.    v.    Craven,    210    N.  10  Weeks  v.  O'Brien,  141  N. 

Y.  443;  Thomas  v.  Fleury,  26  Y.  109. 

N.  Y.  26.  11  Shurman  v.  George  Back- 
er, etc.,  144  N.  Y.  Supp.  9. 


IN  GENERAL  103 

that  the  contract  contains  a  provision  that  pay- 
ments shall  be  made  only  upon  the  certificate  of 
the  architect  will  not  prevent  the  contractor, 
under  such  circumstances,  from  recovering  on 
quantum  meruit  the  difference,  if  any,  which 
there  may  be  between  the  contract  price  and  the 
cost  of  completion.  Under  such  circumstances, 
the  production  of  the  architect's  certificate  is 
neither  necessary  nor  material  to  support  the  re- 
covery.12 

In  further  limitation  of  the  ordinary  rule  re- 
quiring that  the  certificate  of  the  architect  must  be 
secured,  it  should  be  noted,  that  in  the  event  that 
the  refusal  or  failure  of  the  architect  or  engineer 
to  give  such  certificate  is  a  result  of  an  error  of 
law  on  his  part  in  construing  the  terms  of  the  con- 
tract, the  contractor  is  not  barred  by  his  inability 
to  produce  the  certificate  and  may  recover  for  the 
work  which  he  has  done,  if  the  same  has  been  in 
other  respects  satisfactory  and  in  accordance  with 
the  terms  of  the  contract.13 

Just  as  the  refusal  to  give  the  certificate  may 
not  be  necessarily  fatal  to  the  recovery  of  the  con- 
tractor, so  the  fact  that  a  final  certificate  has  been 
given  is  not  invariably  conclusive  evidence  of  the 
amount  due  from  owner  to  contractor.  In  the 
event,  for  instance,  that  there  has  been  a  guar- 
antee by  the  contractor  that  the  completed  struc- 
ture will  have  a  certain  capacity  or  effectiveness 
in  the  use  to  which  it  is  to  be  put,  and  it  prove  that 

12  Borup    v.    Von    Kokeritz,          13  Merrill-Ruckgaber    Co.    v. 
162  N.  Y.  A.  D.  394.  New  York,  160  N.  Y.  A.  D.  513. 


104        LAW  OF  ARCHITECTURE  AND  BUILDING 

it  is  deficient  in  such  respects,  the  owner,  in  a  suit 
by  the  contractor  for  the  unpaid  balance  of  the 
contract,  may  properly  counterclaim  for  a  breach 
of  such  warranty.  Evidence  of  such  breach  is 
admissible  under  these  circumstances  for  the  rea- 
son that  such  a  warranty  survives  the  completion 
and  acceptance  of  the  contract,  and  the  mere  fact 
that  the  contract  has  been  completed  in  accord- 
ance with  its  terms,  and  the  building  erected  in 
accordance  with  the  plans  agreed  upon,  is  no 
answer  to  a  claim  that  in  addition  to  this  contract 
there  was  a  warranty  that  the  building,  when 
completed  in  accordance  with  the  plans  and  con- 
tract, should  be  available  and  efficient  for  the 
purposes  intended,  and  that  it  is  deficient  in  these 
particulars. 

The  combination  of  a  provision  for  arbitration 
with  a  provision  for  the  giving  of  certificates  by 
the  architect  or  engineer,  may  operate  to  relieve 
the  contractor  somewhat  of  the  strict  require- 
ments of  the  ordinary  certificate  provision.  So, 
if  it  be  provided  both  that  claims  of  the  contractor 
shall  be  approved  and  passed  by  the  engineer  or 
architect,  and  that,  in  the  event  that  the  same  are 
not  so  passed,  they  shall  be  determined  by  arbi- 
tration, the  contractor,  upon  the  failure  of  the  ar- 
chitect to  issue  the  certificate,  will  still  have  open 
to  him  the  right  to  have  his  claim  determined  by 
arbitration.  At  the  same  time,  in  a  contract  so 
phrased,  the  contractor  may  not  invoke  the  rule 
that  a  recovery  may  be  enforced  where  the  refusal 
to  certify  is  improper,  without  first  referring  the 


IN  GENERAL  105 

matters  in  dispute  to  arbitration  in  accordance 
with  the  arbitration  provisions  of  the  contract.14 

The  courts  are  inclined  to  give  more  than  ordi- 
nary weight  to  the  opinions  and  testimony  of  ar- 
chitects regarding  the  character  and  conditions 
of  the  work,  not  only  on  account  of  their  special 
professional  knowledge  on  these  points,  but  on 
account  also  of  the  somewhat  quasi- judicial  posi- 
tion which  they  occupy  in  superintending  the  per- 
formance of  a  construction  contract.  Where, 
for  example,  the  contractor  sues  in  quantum 
meruit,  and  testifies  that  the  owner  has  prevented 
performance  of  the  contract  by  failing  to  pay 
an  installment  due  under  the  contract  and  has 
based  his  refusal  solely  on  the  ground  that  the 
superintendent  of  the  works  has  failed  to  recom- 
mend payment,  such  refusal  in  itself  not  giving 
to  the  owner,  under  the  contract,  the  right  to 
refuse  payment,  and  the  architect  denies  the 
contractor's  contention  and  testifies  that  the  only 
reason  the  certificate  has  not  been  given  is  that 
the  work  is  defective,  the  evidence  is  insufficient 
to  show  that  the  owner  prevented  performance.15 

Provisions  relative  to  the  certificate  of  the  ar- 
chitect are  not  enforced  solely  for  the  benefit  of 
the  owner,  but  may  be  enforced  for  the  protection 
of  the  contractor  as  well.  If,  for  instance,  the 
contract  provide  that  upon  the  architect  certify- 
ing to  the  default  of  the  contractor,  the  owner 

14  People      ex      rel.      Rapid          15  Borup    v.    Von    Kokeritz, 
Transit  Co.  v.  Craven,  210  N.      162  N.  Y.  A.  D.  394. 
Y.  443- 


io6        LAW  OF  ARCHITECTURE  AND  BUILDING 

may  terminate  the  contract  and  complete  the 
work,  and  that  he  may,  for  this  purpose,  take 
possession  of  the  tools  and  materials  on  the 
premises,  the  giving  of  the  architect's  certificate 
is,  under  such  circumstances,  a  condition  prece- 
dent to  the  right  of  the  owner  to  take  possession  of 
the  tools  and  materials  and  he  will  not  be  allowed 
to  assert  any  right  of  possession  to  them  until  the 
certificate  is  given. 

Speaking  generally,  it  is  in  actions  by  the 
builder  against  the  owner,  to  recover  the  contract 
price,  that  the  questions  involving  the  acceptance 
of  the  work  and  the  issuance  of  certificates  by  the 
architect  arise.  An  examination  of  the  decisions 
in  such  actions  will  indicate  what  important  fac- 
tors these  questions  have  proved  to  be  in  the  cases 
wherein  they  have  been  present,  and  how  gen- 
erally and  in  how  many  different  jurisdictions 
they  have  arisen.16 

16  Heidlinger      v.      Onward  Hooker,    2    Cal.    App.    36,    83 

Const.  Co.,  44  Misc.   (N.  Y.)  Pac.    79.    Fitzgerald    v.    Ben- 

555,  90  N.  Y.  Supp.  (124  N.  Y.  ner,  219  111.  485,  76  N.  E.  709; 

St.      Rep.)      115;      Olsen     v.  Barbee  v.  Findlay,  221  111.  251, 

Schwarzwelder,  109  N.  Y.  App.  77   N.   E.   590;   Andrew   Lohr 

Div.  282,  95  N.  Y.  Supp.  651 ;  'Bottling  Co.  v.  Ferguson,  223 

Traitel  v.  Oussani,  51  Misc.  (N.  111.  88,  79  N.  E,  35.    Louisville 

Y.)  667,  135  N.  Y.  St.  Rep.  (101  Foundry  Co.  v.  Patterson  (Ky. 

N.   Y.    Supp.),    105,   White  v.  Ct.  of  App.  May  9th,  1906)  93 

Abbott,  188  Mass.  99,  74  N.  E.  S.  W.  22.    Dogue  v.  Levy,  114 

305;    Hebert    v.    Dewey,    191  La.    21,    37    So.    095;    Filston 

Mass.    403,    77     N.     E.    822;  Farm  Co.  v.  Henderson   (Md. 

Loftus  v.  Jorjorian,  194  Mass.  Ct.  of  App.  June  27,  1907),  67 

165,   80    N.    E.    235.    Bush   v.  Atl.       228.    Carnegie       Public 

Jones    (C.    C.    A.),    144    Fed.  Lib.    Assoc.    v.    Harris    (Tex. 

942;  Stephens  v.  Essex  County  Civ.  App.  May  9th,  1906),  97 

Park  Commission  (C.  C.  A.),  S.  W.  520.    Lavanway  v.  Can- 

143     Fed.     844.    Wyman     v.  non,   37   Wash.    593,   79    Pac. 


IN  GENERAL  107 

§  56.  Damages. — The  contractor  is  in  duty 
bound  to  see  that  the  work  performed  by  him  for 
the  owner  is  performed  in  a  proper  and  workman- 
like manner,  and  if  this  is  not  the  case  and  reason- 
able care  is  not  employed  and  damage  to  the  owner 
results,  the  latter  may  look  directly  to  the  con- 
tractor for  compensation.17 

While  the  relationship  of  owner  and  contractor 
is  not  characterized  by  the  elements  of  special 
trust  and  confidence  to  the  same  extent  as  is  the 
relationship  of  owner  and  architect,  and  while  the 
duties  of  the  contractor  to  the  owner,  and  of  the 
owner  to  the  contractor,  are  limited  and  pre- 
scribed almost  entirely  by  the  more  strictly  legal 
obligations  of  the  one  to  the  other,  as  set  forth  in 
the  contract  between  them,  and  without  those 
other  and  implied  elements  of  special  obligation 
and  trust  which  characterize  a  professional,  as 
distinguished  from  a  business,  relationship,  never- 
theless, the  owner  and  the  contractor  must  deal 
with  one  another  in  absolute  and  entire  good  faith. 
If  the  owner  depart  from  his  duties  in  this  re- 
spect and  conspire  against  the  contractor,  either 

1117.    Halsey     v.      Waukesha  Newman  v.  Fowler,  37  N.  J.  L. 

Springs    Sanitarium    Co.,    125  89;  compare  also  Cass  County 

Wis.  311,  104  N.  W.  94;  Mod-  v.  Gibson,  107  Fed.  363,  to  ef- 

ern    Steel    Structure    Co.    v.  feet  that  an  offer  by  the  builder 

English   Const.   Co.,    129   Wis.  in  good  faith  to  correct  defects 

31,  108  N.  W.  70.    Robins  v.  will    entitle    him    to    recover. 

Goddard  (1905),  i  K.  B.  294.  As    to    what    acceptance    will 

17  Mohawk,      etc.,      Co.      v.  constitute  a  waiver,  see  Smith 

Brown,  163  N.  Y.  A.  D.  157;  v.  Brady,  17  N.  Y.  173;  Estep 

David  v.    McDonald,   8  L.   C.  et  al  v.   Fenton  et  al,  66  111. 

(Lower    Canada)    Jurist,    44;  467;  Korf  v.  Lull,  70  111.  420. 
14    L.    C.    Rep.    31;    and    see 


io8        LAW  OF  ARCHITECTURE  AND  BUILDING 

with  the  architect  or  others,  he  is  liable  to  the  con- 
tractor for  any  damages  occasioned  the  latter  as 
a  result  of  his  conduct.  On  the  other  hand,  if 
it  appear  that  the  contractor  has  been  guilty  of 
any  improper  conduct  toward,  or  willful  depart- 
ure from  his  obligations  to,  the  owner,  the  latter 
may  recover  for  the  damage  caused  him  by  such 
wrongful  acts  of  the  contractor. 

It  is  a  well  recognized  and  long  established 
principle  that  a  contract  induced  by  fraud  is  void- 
able at  the  option  of  the  party  defrauded.18  If, 
therefore,  some  concession  or  agreement  be  made 
either  by  the  owner  or  by  the  contractor  as  a  re- 
sult of  bad  faith  or  of  misrepresentation  on  the 
part  of  the  other,  the  transaction  may  be  deemed 
a  nullity  by  the  innocent  party.  Thus,  if  the  ar- 
chitect waive  the  requirements  of  a  written  con- 
struction contract,  with  the  authority  and  consent 
of  the  owner,  such  waiver  will,  nevertheless,  not 
be  binding  on  the  owner,  if  the  action  taken  by  the 
architect  and  the  acquiescence  therein  of  the 
owner  be  the  result  of  bad  faith  on  the  part  of 
the  contractor.19 

The  owner  has  the  right  to  insist  that  the  work- 
manship of  the  contractor  be  of  good  character 
and  performed  with  reasonable  skill  and  care,  and 
if  the  workmanship  be  not  of  such  character,  but 

18  Morrison  v.  Universal,  etc.,  v.    Hatfield,    46    N.    Y.    533 ; 

Co.,  L.  R.  8  Exch.  Cases  197;  Baird  v.  New  York,  96  N.  Y. 

Rowley   v.    Bigelow,    12    Pick.  567. 

(Mass.)       307;       Byard       v.          19  Mohawk    Overall    Co.    v. 

Holmes,  33  N.  J.  L.  119;  Daly  Brown  et  al.,  163  N.  Y.  A.  D. 

v.  Wise,  132  N.  Y.  306;  Cobb  157. 


IN  GENERAL  109 

be  such  as  to  justify  the  conclusion  that  the  con- 
tractor has  been  guilty  of  bad  faith  and  reckless- 
ness and  improper  methods  of  construction  in  the 
carrying  out  of  his  contract,  the  owner  may  col- 
lect from  the  contractor,  as  damages,  the  amount 
which  it  may  cost  him  to  effect  proper  repairs,  and 
to  correct  the  faults  of  construction  resulting 
from  the  acts  or  omissions  of  the  contractor. 
This  will  be  true  even  if  it  be  shown  that  the 
owner  authorized  the  architect  to  waive  the  re- 
quirements of  the  written  contract,  and  consented 
to  a  different  form  of  construction  from  that 
originally  specified.  No  matter  what  the  form  of 
construction  may  be  the  owner  has  a  right  to  ex- 
pect that  the  contractor  will  perform  his  work  in 
accordance  with  the  form  of  construction  speci- 
fied, and  in  a  proper  and  reasonably  careful  man- 
ner.20 

§  57.  Right  to  Plans. — It  has  been  already 
noted  that  the  owner,  in  the  absence  of  a  special 
agreement  between  him  and  the  architect,  is  en- 
titled to  the  plans  which  he  has  ordered  and  for 
which  he  has  paid  or  became  obligated  to  pay. 
While  there  is  no  element  of  ownership  in  the 
rights  of  the  builder  in  the  plans,  nevertheless, 
the  fact  has  been  recognized  that  he  has  a  certain 
right  to  use  and  to  hold  them  in  his  possession 
during  the  progress  of  the  work.  The  specific 
case  in  which  this  right  has  been  referred  to, 
however,  involved  the  right  of  the  builder  to  the 
plans  as  between  himself  and  the  architect  and  a 

20  Mohawk  Co.  v.  Brown  et  al.,  163  N.  Y.  A.  D.  157. 


i  io        LAW  OF  ARCHITECTURE  AND  BUILDING 

question  of  criminal  conduct  and  bad  faith  on  the 
part  of  the  latter.21  It  should  not  be  considered, 
therefore,  as  at  all  conclusive  in  an  ordinary  case, 
even  as  between  architect  and  contractor.  All 
that  can  be  said  in  regard  to  this  right  as  between 
the  owner  and  the  builder  is  that  there  might,  con- 
ceivably, be  certain  circumstances  under  which 
the  taking  of  the  plans  by  the  owner  from  the 
builder  would  be  improper,  and  certain  rights 
to  which  the  court,  under  special  conditions, 
would  probably  hold  the  builder  to  be  entitled, 
such  as  the  right  to  hold  the  plans  as  a  part  and  as 
evidence  of  the  contract  between  himself  and  the 
owner  or  for  purposes  of  proof  of  his  own  proper 
compliance  with  the  terms  of  the  contract  between 
them. 

§  58.  Liability  of  Contractor  for  Work  of  Sub- 
contractor.— A  contractor  is  bound  to  make  good 
any  defects  in  the  work  which  are  the  result  of 
improper  work  by  his  subcontractor.  Under  such 
conditions  he  will  naturally  desire  to  secure  reim- 
bursement from  the  subcontractor  if  possible. 

§  59.  Recoupment  from  Subcontractor. — An 
agreement  by  a  subcontractor  to  perform  work 
under  the  supervision  of  an  architect,  and  in  ac- 
cordance with  the  latter's  plans,  will  be  sufficient 
to  sustain  a  recovery  by  the  general  contractor 
from  the  subcontractor  of  any  amounts  which  the 
former  has  been  compelled  to  pay  by  reason  of  the 
architect's  requiring  him  to  replace  work  per- 
formed by  the  subcontractor,  because  the  same 

21Lonford    v.    Diettrich,    87  Ala.  250. 


IN  GENERAL  in 

* 

was  defective  and  not  in  accordance  with  the 
plans.  The  subcontractor,  however,  cannot  be 
held  to  account  for  provisions  in  the  specifications 
which  refer  merely  to  the  amount  to  be  paid  to 
the  contractor  by  the  owner,  and  if  he  prove  that 
he  has  performed  the  work  which  he  has  agreed 
to  perform,  in  accordance  with  the  plans  and 
specifications,  his  right  to  recover  will  be  sus- 
tained.22 

§  60.  Time  of  Payment. — In  some  instances  it 
may  be  that  the  contract  specifies  no  fixed  time  for 
payment,  as  distinguished  from  the  usual  contract 
provisions  whereby  installment  payments  at 
designated  times  or  stages  of  the  work  are  pro- 
vided for.  Where  no  fixed  time  for  payment  is 
provided,  the  contractor  is  not  entitled  to  payment 
for  the  work  until  the  performance  thereof  has 
been  completed. 

§  61.  Substantial  Performance. — The  doctrine 
of  substantial  performance  will  be  again  referred 
to  in  another  connection 23  and  the  rules,  which 
will  be  seen  to  characterize  that  doctrine,  when 
applied  to  a  proceeding  by  the  builder  to  foreclose 
his  lien,  may,  in  general,  be  said  to  characterize  it 
also  when  applied  to  a  suit  by  the  builder  to  re- 
cover the  amount  which  he  may  claim  to  be  due 
to  him  under  the  building  contract. 

While  the  doctrine  of  substantial  performance 
was  developed  to  do  away  with  the  injustice  which 
an  insistence  on  an  absolutely  literal  and  strict 

22  Martin   v.    Oberle,   85    N.          2S  Part  III,  Liens,  p.  163. 
Y.  Misc.  35. 


112        LAW  OF  ARCHITECTURE  AND  BUILDING 

» 

performance  of  the  contract  would  often  work 
the  contractor  must,  nevertheless,  comply  with 
each  and  every  one  of  the  substantially  important 
and  necessary  elements  and  provisions  of  the  con- 
tract. If  he  agree  to  perform  certain  work  ac- 
cording to  law,  he  can  not  recover  for  the  work 
even  though  he  has  performed  it,  if  it  appear  that 
he  has  not  complied  with  certain  material  provi- 
sions of  the  law.  For  the  purposes  of  this  rule, 
a  contractor  who  has  failed  to  comply  with  the 
Rules  of  the  Tenement  House  Department  is  con- 
sidered to  have  failed  to  comply  with  the  provi- 
sions of  the  law.24 

Just  what  constitutes,  in  a  given  case,  substan- 
tial performance,  will  depend  upon  all  the  condi- 
tions surrounding  the  work  and  the  terms  of  the 
contract  in  that  specific  case.  What  might,  for 
instance,  under  certain  conditions,  be  sufficient  to 
sustain  a  conclusion  that  the  contract  has  been 
substantially  performed,  might,  under  other  con- 
ditions, be  totally  inadequate  for  that  purpose. 

In  a  rather  recent  case  a  contractor  agreed  to 
excavate  a  cellar  162  feet  in  length,  102  feet  in 
width,  and  8  feet  in  depth.  The  cellar  which  he 
excavated  measured  161  feet  in  length  by  99  feet 
8  inches  in  width  and  8  feet  in  depth.  It  was  held 
that  he  had  not  substantially  performed  his  con- 
tract and  that  he  could  not  recover  the  balance 
unpaid  thereon  and  for  which  he  sued.25 

24  Bonagur  v.  Purificato,  146          25  Paladino    Contracting    Co. 
N.  Y.  Supp.  1070.  v.    Walsh    et    al.,    144    N.    Y. 

Supp.  7. 


CHAPTER  II 

REQUISITES  OF  CONSTRUCTION 
CONTRACT 

§  62.  In  General. — There  is  naturally  nothing 
of  more  importance  as  affecting  the  mutual 
rights  and  liabilities  of  the  owner,  the  builder, 
and,  to  a  certain  extent,  the  architect,  than  the 
construction  contract,  in  that  it  is  to  the  contract 
that  the  courts  will  look  primarily  in  determining 
and  interpreting  the  special  rights  and  liabilities 
of  the  parties.1 

While  in  the  absence  of  a  specific  statute  it  is 
not  necessary  that  the  contract,  if  it  is  to  be  per- 
formed within  a  year,  shall  be  in  writing,2  yet  the 
custom  of  reducing  the  terms  of  the  understand- 
ing to  written  form  has  now  become  so  well-nigh 
universal,  and  the  desirability  of  a  contract  in 
definite  written  form  is  so  apparent,  that  in  refer- 
ring to  the  contract  hereafter  it  may  be  assumed, 
unless  it  is  otherwise  definitely  indicated,  that 
where  the  word  contract  is  used  a  written  con- 
tract is  referred  to. 

It  is  one  of  the  prime  requisites  of  any  contract 
that  a  valid  consideration  be  present,  and  the 

1 0'Keefe    v.     St.    Francis's          2  Champlain  Construction  Co. 
Church,  59  Conn.  551.  v.  O'Brien,  117  Federal  271. 

"3 


ii4        LAW  OF  ARCHITECTURE  AND  BUILDING 

building  contract  is  no  exception  to  the  rule.3  It 
is  essential  also  that  there  be  present  in  the  con- 
tract the  element  of  mutuality — the  obligation 
upon  the  builder  to  do  the  work  and  upon  the  em- 
ployer to  make  payment  for  the  work  that  is 
done ; 4  a  mere  memorandum  of  prices  signed  by 
the  parties  cannot  be  held  to  be  a  binding  contract, 
in  the  absence  of  an  undertaking  by  the  parties  to 
perform  the  agreement.5  To  these  more  funda- 
mental requisites  of  a  valid  contract  must  be 
added  the  element  that  the  building  contract  must 
be  so  phrased  as  to  allow  the  intent  of  the  parties 
to  be  deduced  therefrom  with  a  reasonable  degree 
of  certainty.  In  a  comparatively  recent  case 6  be- 
fore the  Federal  Supreme  Court,  it  appeared  that 
there  was  a  variance  between  the  provisions  of 
the  contract  and  the  specifications,  and  the  court, 
in  its  opinion  by  Chief  Justice  White,  referring 
to  the  irreconcilable  provisions  of  the  contract  and 
specifications,  said: 

"it  is  evident  that  there  was  a  conflict  so  irreconcilable 
between  the  essential  provisions  of  the  assumed  contract 
as  to  render  it  impossible  to  enforce  it  as  an  agreement 
between  the  parties  .  .  .  under  the  circumstances,  there- 
fore, the  court  erred  in  treating  the  contract  as  a  valid 
agreement." 

Analogous  to  the  foregoing  rule  is  the  rule  that 
where  the  specifications,  in  exact  accordance  with 
which  it  is  covenanted  the  building  must  be 

8Majory     v.     Shubert,     82      York,  49  Misc.    (N.   Y.)    114. 
<N.  Y.)  A.  D.  633.  B  Greve   v.    Ganer,   36   Wis- 

*Durkin    v.    City    of    New      consin  369. 


REQUISITES  OF  CONSTRUCTION  CONTRACT      115 

erected,  are  so  indefinite  and  so  erroneously 
drawn  as  to  make  impossible  any  proper  interpre- 
tation of  them,  or  the  erection  pursuant  to  them, 
of  a  building  of  any  known  dimensions,  the  con- 
tract will  not  be  enforced.7 

Other  elements  of  the  valid  contract  which 
should  be  specially  noted  are :  That  the  contract 
must  not  contemplate  a  building  in  its  very  charac- 
ter capable  of  being  used  for  an  illegal  purpose,8 
and  that  it  must,  also,  be  so  drawn  as  to  comply 
with  the  provisions  of  the  building  codes  and 
regulations  in  force  where  the  building  is  to  be 
erected.9 

It  is  not  necessary  that  the  construction  con- 
tract, any  more  than  an  ordinary  contract,  be  con- 
tained in  one  instrument  solely,  and  other  condi- 
tions or  provisions  may  be  incorporated  in  the 
contract  as  a  part  thereof  by  proper  reference  to 
them  in  the  main  instrument.10  Thus  the  pro- 
vision contained  in  Article  4  of  the  new  standard 
form  of  agreement  issued  by  the  American  Insti- 

6  United    States    v.    Ellicott,  its  terms,  the  owner  may  not 
223  U.  S.  524.  defend  on  the  ground  that  ad- 

7  Lyle    v.    Jackson    Co.,    23  ditional    expense    will    be    re- 
Arkansas  63,  and  see  Turney  quired  to  make  the  work  con- 
v.  Bridgeport,  55  Conn.  412.  form    with   the    building    reg- 

8  Spurgeon  v.  MacElwain,  6  ulations ;  and  see  Girard  Life 
Ohio  442.  Insurance   Co.  v.   Cooper,    162 

9  Burger  v.  Koelsch,  77  Hun.  U.  S.  529;  Disken  v.  Herger, 
(N.    Y.)     44;     Eastern,    etc.,  73  N.  Y.,  A.  D.  453. 

Metal    Co.    v.    Webb    Granite,  10  Francis  v.  Heine,  etc.,  Co., 

etc.,   Co.,    195   Mass.   356;   but  105  Federal  413,  reversed,  but 

see  Morse  v.   Maurer,  35   Pa.  on  other  grounds,  109  Federal 

Super.    Ct.    196,   holding   that  838;    Howard    v.     Pensacola, 

where   the   contract   has   been  etc.,  Co.,  24  Florida  560. 
performed  in  accordance  with 


n6        LAW  OF  ARCHITECTURE  AND  BUILDING 

tute  of  Architects  and  approved  by  the  National 
Association  of  Builders'  Exchanges  and  other 
associations,  providing  that  the  drawings  and 
specifications  are  made  a  part  of  the  contract,  is 
good;  and  when  they  are  so  incorporated  in  the 
contract,  they  become  at  once,  by  virtue  of  such 
incorporation  therein,  elements  of  direct  import- 
ance in  determining  the  rights  of  the  various 
parties.11  The  mere  fact  that  the  plans  and  speci- 
fications are  not  attached  to  the  contract,  al- 
though it  is  agreed  that  they  shall  be,  has  been 
held  immaterial  where  the  contract  itself  is  suffi- 
ciently definite  to  determine  the  rights  of  the 
parties.12 

While  there  would  seem  to  be  no  damage  occa- 
sioned either  party  by  not  attaching  the  plans  and 
specifications  as  agreed  where  the  contract  is  ab- 
solutely definite  and  clear  without  them,  neverthe- 
less, where  the  provision  that  they  shall  be  at- 
tached is  made  a  definite  term  of  the  contract,  and 
is  clearly  inserted  for  the  purpose  of  protecting 
the  parties,  by  making  definite  and  clear  every 
term  of  their  agreement,  it  is  unsafe  to  attempt  to 
extend  the  rule  as  stated  so  as  to  include  such  a 
case,  or  to  take  liberties  with  the  contract  by  not 
attaching  the  plans  and  specifications,  when  it  has 
been  specifically  covenanted  as  a  term  of  the  con- 
tract that  they  shall  be  attached. 

11  Wilemet   Steam,   etc.,    Co.  Moore,   170  Ind.  328 ;   but  see 

v.  Los  Angeles  College  Co.,  94  Hayes  v.  Wagner,  113  Illinois 

Cal.  239;  Howard  v.  Pensacola,  Appeals  299. 

etc.,   Co.,  supra.,  24  Fla.   560 ;  12  Womble    v.    Hickson,    91 

Cleveland,  etc.,  Railroad  Co.  v.  Arkansas  266. 


REQUISITES  OF  CONSTRUCTION  CONTRACT      117 

§  63.  Importance  of  Statutory  Provisions. — 
The  provisions  in  the  various  States  in  regard  to 
construction  and  other  contracts  differ,  as  is  natu- 
ral, in  many  respects,  and,  as  in  the  case  of  a  lien, 
the  only  really  safe  course  to  pursue  in  any  given 
case  is  to  become  thoroughly  acquainted  with  the 
special  provisions  of  the  statute  in  the  jurisdiction 
in  which  the  case  arises.  In  California,  it  has 
been  held 13  that  the  contract  cannot  support 
an  action  for  damages  for  its  breach  unless  it  is 
recorded,  and  that  where  an  ordinance  specifies 
that  a  permit  must  be  obtained,  a  contract  to  con- 
struct without  a  permit  is  not  lawful  and  will  not 
be  allowed  to  form  the  basis  of  a  civil  action.14 
In  Connecticut  an  agreement  to  build  from 
plans  and  specifications  not  submitted  to  and  ap- 
proved by  the  officers  by  whom  the  statute  re- 
quired they  should  be  approved,  has  been  held  to 
be  void.15  While  the  foregoing  are  instances  of 
special  State  statutes  they  should  be  noted,  es- 
pecially, as  excellent  examples  of  the  rule  that 
prudence  requires  that  in  the  making  and  in  the 
performance  of  the  contract,  all  the  parties  should 
give  proper  heed  to  such  ordinances  and  statutes 
as  may  apply,  even  if  it  be  considered  that  their 
application  is  not  necessarily  clear  or  of  any  con- 
siderable importance. 

§  64.  Void  and  Illegal  Contracts. — In  this  same 
connection  a  distinction  should  be  noted  between 

13  Condon    v.    Donohue,    160          1S  Wilcox  Manufacturing  Co. 
Cal.  749.  v.  Brazos,  74  Conn,  208. 

14  Smith  v.  Luning,  in  Cal. 
308. 


ii8       LAW  OF  ARCHITECTURE  AND  BUILDING 

a  contract  which  is  wholly  void,  because  it  is  not 
properly  consummated,  or  because  it  contemplates 
the  doing  of  an  illegal  act,  and  a  contract  which  in 
itself  is  perfectly  lawful,  but  is  not  performed  in 
a  lawful  manner.  The  latter  contract  will  not  be 
declared  illegal  as  a  whole  so  as  to  prevent  a  re- 
covery under  it.16  The  mere  carrying  out  of  a 
contract  in  an  illegal  way  does  not  make  the  con- 
tract itself  illegal,17  and  even  where  the  contract 
contains  certain  provisions  which  are  not  in  ac- 
cordance with  statute  or  ordinance,  it  seems  that 
its  validity  may  possibly  in  some  cases,  and  espe- 
cially where  nothing  illegal  was  intended,  be  sus- 
tained.18 The  requirement  that  the  contract  shall 
not  usurp  the  jurisdiction  of  the  courts  is  referred 
to  elsewhere.19 

16  Fox  v.  Rogers,  171  Mass.          18  Favor  v.  Philbrick,  7  New 
546.  Hampshire    326;     Waugh     v. 

17  Barry  v.  Cape,  151  Mass.      Morris,  L.  R.,  8  Q.  B.  202. 
99.  1S>  See  §  71,  p.  130. 


CHAPTER  III 

TERMS  AND  OPERATION  OF 
BUILDING  CONTRACT 

§  65.  The  Architect  as  Arbitrator. — One  of  the 
provisions  of  the  ordinary  contract  which  may  be 
extremely  helpful,  if  properly  drawn  and  under- 
stood, and  at  the  same  time  is  perhaps  as  likely  to 
cause  difficulty  as  any  other,  is  the  provision  deal- 
ing with  the  finality  of  the  decision  of  the  archi- 
tect and  with  his  position  as  arbitrator.  A 
provision  that  the  decision  of  the  architect,  in 
regard  to  the  construction  and  meaning  of  the 
drawings  and  specifications,  shall  be  final  is 
proper,  and  is  recognized  as  entirely  valid  by  the 
courts.  Indeed,  a  provision  in  much  fuller  form 
and  covering  many  points  which  the  provision  re- 
ferred to  would  not  cover,  such  as  a  provision 
that  the  certificates,  determinations  and  decisions 
of  the  architect  shall  be  final  and  conclusive,  has 
been  recognized  as  valid,  both  by  the  Federal 
courts,  by  the  courts  of  New  York  and  by  the 
courts  of  other  States  and  of  other  countries.1 

1Ripley    v.    United    States,  Handy    v.     Bliss,    204    Mass. 

223    U.    S.    695;    Conners    v.  513;    Brown    v.    Decker,    142 

United     States,     130     Federal  Pa.     State    640;     O'Brien    v. 

609;   Farrell  v.  Levy,  139  (N.  Reg.,   4   Can.    Supreme    Court 

Y.)  A.  D.  790;  N.  Y.  Building  529;     Courtney    v.    Provincial 

Co.  v.  Springfield,  etc.,  Co.,  56  Commission,    41    Nova    Scotia 

A.    D.     (N.    Y.)    294;    Sweet  71. 
v.    Morrison,    116    N.    Y.    19; 

119 


120       LAW  OF  ARCHITECTURE  AND  BUILDING 

§  66.  Limitation  of  Rule. — In  restriction  of  the 
general  rule  as  stated  it  should  be  noted  that  its 
application  is  dependent  upon  the  absence  of 
fraud,2  or  mistake,3  in  the  transaction.  A  pro- 
vision that  the  architect  is  to  decide  the  true 
construction  and  meaning  of  the  drawings  and 
specifications,  does  not  apply,  the  New  York 
courts  have  held,  to  disputes  regarding  the  con- 
struction of  the  contract.  In  a  case  where  the 
question  related  to  the  necessity  of  the  contractor 
filling  in  between  iron  beams  on  the  basement 
floor  with  terra  cotta  blocks,  under  the  provisions 
of  the  contract  between  him  and  the  main  con- 
tractor, it  was  held  that  this  had  nothing  to  do 
with  the  drawings  and  specifications,  and  that  the 
decision  of  the  architect  relative  thereto  was, 
therefore,  not  controlling.4 

Another  example  of  the  comparatively  strict 
construction  which  the  courts  have  placed,  in 
some  instances,  upon  the  provisions  vesting  the 
architect  with  large  powers  of  decision  or  arbi- 
tration, is  the  holding  of  the  British  courts  that, 
even  where  it  is  provided  that  any  question  aris- 
ing between  owner  and  contractor,  or  relating  in 
any  way  to  the  contract,  or  involving  the  deter- 
mination of  a  dispute  between  any  of  the  con- 
tractors in  regard  to  the  building,  shall  be  deter- 

2  Ripley  v.  U.  S.,  223  U.  S.  Co.  v.  Springfield  Co.,  56  A.  D. 
695;    N.    Y.    Building    Co.    v.  (N.  Y.)  294,  supra. 
Springfield  Co.,  56  A.  D.   ( N.  *  Isaacs  v.  Dawson,  70  A.  D. 
Y.)  294,  supra.  (N.    Y.)    232— judg.   aff'd   174 

3  Farrell  v.  Levy,  139  A.  D.  N.  Y.  537. 
(N.  Y.)   790;   N.  Y.  Building 


OPERATION  OF  BUILDING  CONTRACT  121 

mined  by  the  architect,  whose  decision  shall  be 
absolute  and  final,  yet,  the  differences  between  the 
contractor  and  his  employees,  as  to  extras,  will 
not  be  covered  by  such  a  provision,  and  the  provi- 
sion will  be  applied  only  to  disputes  in  regard  to 
the  manner  of  carrying  on  the  different  depart- 
ments of  the  work.5 

While  the  courts  have  applied  the  restrictions 
noted,  in  the  application  of  the  general  doctrine,  it 
is  still  true  that  they  have,  with  substantial  una- 
nimity, recognized  the  validity  of  provisions  vest- 
ing the  architect  with  many  different  and  broad 
authorities  in  his  character  of  supervisor  of  the 
works  and  of  arbitrator  of  disputes  arising  in 
connection  therewith.  Thus  they  have  sustained 
and  enforced  the  provisions  so  common  in  the 
building  contracts  and  general  conditions  in  use 
at  the  present  day,  providing  that  to  the  architect 
may  properly  be  left  the  determination  of  any 
matters  of  differences,6  whether  relating  to  the 
quantity,  quality  or  value  of  the  work  done ; 7 
or  to  payments;  or  to  the  securing  of  certifi- 
cates preliminary  to  the  payment  of  moneys 
due ; 8  or  to  performance ; 9  or  to  the  measure- 
ment of  the  work ; 10  or  to  loss  or  expense  or 

8  Pashby  v.   Mayor,   etc.,  of  nagh,    38    Iowa    286 ;    Older- 
Birmingham,  86  E.  C.  L.  2.  shaw  v.  Garner,  38  V.  C.  Q. 

•  Mitchell   v.   Dougherty,  86  B.  37. 

Federal  859.  9Wilcox   v.    Stephenson,   30 

7  Elliott  v.  Missouri,  etc.,  Co.,  Florida  377 ;  Schliess  v.  Grand 

74  Federal  707;  Chicago,  etc.,  Rapids,  131  Michigan  52. 

Co.  v.  Price,  138  U.  S.  185.  10  McMahon  v.  N.  Y.  Co.,  20 

8Wilcox   v.    Stephenson,    30  N.  Y.  463. 
Fla.    377;    Mitchell    v.    Kava- 


122        LAW  OF  ARCHITECTURE  AND  BUILDING 

damage  occasioned  the  owner  by  reason  of  a  fault 
of  the  builder.11  Under  certain  conditions  this 
general  rule  may  not  apply.  For  instance,  the 
provision  requiring  that  the  certificate  of  the  ar- 
chitect must  be  secured  before  payment  can  be 
successfully  demanded,  will  not  be  enforced  where 
the  death  of  the  architect  has  intervened ; 12  and 
the  provision  making  the  architect  the  arbitrator 
of  the  amount  or  value  of  the  work  performed!  or 
of  the  correctness  of  its  performance,  will  not  pre- 
vent the  question  of  substantial  performance  be- 
ing raised,13  or  prevent  the  owner  from  refusing 
payment  on  the  ground  that  substantial  perform- 
ance has  not  been  had.14 

§  67.  Extras. — The  importance  of  any  contract 
provisions  in  regard  to  extras  has  been  already 
referred  to.  It  should  be  noted  here,  however, 
that  the  ordinary  contract  provision  requiring 
that  extra  work  be  authorized  in  writing,  is  of 
more  than  ordinary  importance  in  the  present  con- 
nection. 

It  is  especially  advisable  on  account  of  the  dis- 
putes that  may  arise  in  connection  with  this  pro- 
vision, that  it  be  so  phrased  as  to  preclude  any 
misunderstandings  or  difficulty,  so  far  as  this  can 
possibly  be  done.  The  Connecticut  courts  have 
recognized  as  valid  and  have  enforced  the  follow- 
ing form  of  proviso :  "The  contractor  shall  make 

11  White  v.  Abbott,  188  Mass.  1S  Schliess  v.  Grand  Rapids, 
99-  131  Michigan  52. 

12  Pleasant  College  v.  Colett,  "  Oberlies   v.    Bullinger,   75 
142  Kentucky  342.  Hun.  (N.  Y.)  248. 


OPERATION  OF  BUILDING  CONTRACT  123 

no  claim  for  extra  work  unless  the  same  shall  be 
done  in  pursuance  of  a  written  order  from  the 
architect,  and  all  such  claims  shall  be  made  to  the 
architect  in  writing  before  the  next  ensuing  pay- 
ment, or  shall  be  considered  abandoned  by  the 
contractor."  15  This  form  might  well  be  made  a 
trifle  fuller  to  prevent  any  possibility  of  mistake, 
but  is  interesting  as  exemplifying  the  main  and 
essential  points  which  the  contract  in  this  connec- 
tion should  cover.  The  disposition  of  the  courts 
is  to  protect  the  owner  in  regard  to  extra  work,  by 
requiring  that  contract  conditions  precedent  in 
regard  thereto  must  be  strictly  complied  with. 
Even  if  there  be  a  separate  provision  in  the  con- 
tract to  the  effect  that  disputes  in  regard  to  the 
value  of  extra  work  must  be  submitted  to  arbitra- 
tion, yet  this  provision  will  not  in  any  way  nega- 
tive the  effect  of  a  provision  requiring  the  builder 
to  produce  the  architect's  certificate  of  the  satis- 
factory completion  of  the  extra  work,  inasmuch 
as  the  arbitration  provision  in  such  a  case  has  to 
do  merely  with  the  value  of  the  extra  work,  as 
distinguished  from  the  proper  completion  there- 
of.16 The  courts  have  likewise  very  generally 
upheld  and  recognized  the  validity  of  the  other 
provisions  of  the  ordinary  building  contract,  such 
as  the  provision  that  no  extra  work  shall  be  done 
without  the  written  order  of  the  architect,  and 
that  no  payment  need  be  made  for  it,  if  done, 

"O'Keefe    v.    St.    Francis's         16  Fox  v.  Powers,  65  (N.  Y.) 
Church,  59  Conn.  551.  A.  D.  112. 


124        LAW  OF  ARCHITECTURE  AND  BUILDING 

without  the  production  of  the  architect's  order.17 
The  order  may,  however,  be  implied  from  some 
additional  act  of  the  parties,  such,  for  instance,  as 
the  adoption  of  new  specifications  requiring  extra 
work,  an  act  which  is,  in  itself,  equivalent  to  a 
proper  order  for  such  work.18  The  validity  has 
been  upheld  also  of  provisions  that  there  shall  be 
no  departure  from  the  contract  terms  or  from  the 
specifications  or  drawings,  without  the  consent  of 
the  architect  or  engineer  in  charge,19  and  that 
there  shall  be  no  subletting  of  the  contract  unless 
the  owner's  consent  be  secured.20  While  these 
provisions  are  inserted  for  the  benefit  of  the 
owner,  he  may,  of  course,  waive  them  if  he  elect 
so  to  do.21 

§  68.  Right  of  Owner  to  Complete. — There  is 
no  doubt  that  the  ordinary  provision  that  upon 
the  failure  of  the  builder  to  do  the  work  the 
owner  may  complete  the  contract  and  employ 
others  to  that  end  is  good ; 22  and  the  courts  have 
been  liberal  in  their  construction  of  such  provi- 

*  9Q 

sions. 

Where  the  contractor  leaves  the  work  un- 
finished and  fails  to  complete  and  the  owner,  un- 

"Langley  v.  Rouss,   185  N.  20Danforth     v.     Tennessee, 

Y.  201.  etc.,  Co.,  93  Alabama  614. 

18  Hedden    Construction    Co.  21  Danforth     v.     Tennessee, 
v.  Rossiter,  etc.,  Co.,  136  N.  Y.  etc,    Co.    supra;    Bartlett    v. 
A.  D.  601 — compare  O'Keefe  v.  Stanchfield,     148     Mass.     394, 
St.  Francis's  Church,  59  Conn.  opinion  by  Holmes,  J. 

551.  22  Mahoney  v.  Oxford  Realty 

19  White  v.  San  Rafael,  etc.,      Co.,  133  A.  D.  (N.  Y.)  656. 
Co.,  50  Cal.  417.  23Duplan  Silk  Co.  v.  Spen- 
cer, 115  Federal  689. 


OPERATION  OF  BUILDING  CONTRACT  125 

der  his  contract  right  to  do  so  under  such  circum- 
stances, comes  in  and  completes,  it  has  been 
argued,  in  behalf  of  the  contractor,  that  the  pre- 
sumption is  that  the  balance  of  the  contract  price 
remaining  unpaid  at  the  time  of  the  abandonment 
of  the  work  by  the  contractor  will  be  sufficient  to 
defray  the  expense  of  completing  the  work.  This 
contention  is  manifestly  untenable  and  the  law 
will  not  raise  or  recognize  any  such  presumption 
under  these  circumstances.24 

§  69.  Suspension  of  Work  by  Mutual  Consent. 
— It  often  happens  that  work  is  suspended  by 
mutual  consent  of  contractor  and  of  owner.  In 
such  a  case  before  the  contractor  can  properly 
proceed  to  recover  the  profits  of  the  contract,  he 
must  take  some  steps  to  continue  the  work.  An 
action  brought  by  him  before  he  has  made  any  at- 
tempt to  continue  the  work,  and  when  there  has 
been  no  refusal  on  the  part  of  the  owner  to  allow 
him  to  continue  the  work  and  complete  the  con- 
tract, is  premature.25 

§  70.  Liquidated  Damages. — Upon  the  ques- 
tion of  liquidated  damages  it  is  very  difficult,  if 
not  impossible,  to  state  any  definite,  enforcible 
and  yet  comprehensive  rule.  The  provision  that, 
in  the  event  of  delay  in  the  completion  of  the  con- 
tract, a  certain  sum  shall  be  paid  to  the  owner,  as 
damages  for  each  day  or  similar  period  that  the 

2*  Brainard    v.    The    County          28  Dreyer      v.      McCormack 
of  Kings,  155  N.  Y.  538;  Tri-      Real  Estate  Co.,  164  App.  Div. 
Borough,  etc.,  Co.  v.  Wechsler      (N.  Y.)  41. 
Realty  Co.,  163  N.  Y.  A.  D. 
901. 


126        LAW  OF  ARCHITECTURE  AND  BUILDING 

work  shall  remain  unfinished,  is  usually  and  in 
itself  unobjectionable.26  In  one  of  the  cases  last 
cited  27  the  clause  in  the  contract  provided  that 

"the  contractor  shall  pay  to  the  owner  Ten  (10)  Dollars 
for  every  day  thereafter  that  the  said  work  shall  remain 
unfinished  as  and  for  liquidated  damages," 

and  in  another  case  28  it  was  provided : 

"It  is  mutually  agreed  and  understood  that  in  the  event 
of  said  interior  finish  herein  contracted  for  not  being 
entirely  finished  on  or  before  the  I5th  day  of  March, 
1905,  that  the  actual  damages  sustained  by  the  owner  will 
be  difficult  of  computation ;  therefore  it  has  been  agreed 
and  hereby  is  agreed  by  and  between  the  parties  hereto 
that  in  the  event  of  the  failure  of  said  contractor  to  have 
all  of  said  interior  finish  of  main  entrance  and  eighth 
floor  completed  on  or  before  the  I5th  of  March,  1905, 
there  shall  be  due  and  payable  and  said  contractor  shall 
pay  to  the  said  owner  the  just  and  full  sum  of  $50.00  per 
day  for  each  and  every  day  after  March  I5th,  1905,  that 
the  same  or  any  part  thereof,  remains  unfinished  and  in- 
complete, and  that  said  sum  is  hereby  agreed  upon  as 
liquidated  damages." 

These  provisions  were  sustained  as  proper  pro- 
visions, under  the  circumstances  of  their  respec- 
tive cases,  for  liquidated  damages,  as  distinguished 
from  penalties.  It  must  not  be  considered,  how- 
ever, that  it  was  due  to  any  magic  in  the  language 
used  that  the  court  sustained  them,  for  it  is  a  well- 

26  Kelly     v.     Fejervary,     78  2T  Kelly  v.  Fejervary,  78  N. 

Northwestern    828;    Mills    v.  W.  828,  supra. 

Paul,    30    Southwestern    558;  28  Chapman   Co.   v.   Security 

Chapman    Decorative    Co.    v.  Co.,  145  Fed.  434,  supra;  and 

Security,    etc.,    Co.,    145    Fed.  see  Standard   Documents,  Ap- 

434,  aff'd   149  Fed.   189.  pendix  B,  p.  255. 


OPERATION  OF  BUILDING  CONTRACT  127 

recognized  rule  that  in  construing  provisions  of 
this  character  the  courts  will  look  at  the  intention 
of  the  parties,  the  subject  matter,  and  the  nature 
of  the  agreement,  and  from  these  determine  the 
meaning  of  the  wording  used.29  The  reason  that 
the  courts  will  exercise  special  care  in  dealing 
with  this  point  is  that,  under  the  law,  provisions 
for  liquidated  damages  are  recognized  as  valid, 
while  a  provision  which  constitutes  a  penalty,  will 
not  be  enforced;  where  such  a  provision  is  found 
the  courts  will  use  their  own  judgment  in  award- 
ing such  damages  as  they  deem  reasonable. 

The  question  which  must  always  be  determined, 
therefore,  is  whether  or  not,  in  a  given  case,  the 
words  used,  combined  with  the  intention  of  the 
parties  and  with  all  the  attendant  circumstances, 
are  to  be  construed  as  intending  or  providing 
proper  liquidated  damages,  or  are  to  be  construed, 
on  the  other  hand,  as  a  penalty,  and  therefore  as 
unenforcible.  The  wording,  however,  is  not  en- 
tirely negligible  by  any  means,  for  where  it  is  pro- 
vided that  the  amount  specified  is  to  be  considered 
as  liquidated  damages  the  burden  is  upon  the 
builder  to  show  that,  in  reality,  the  provision  con- 
stitutes a  penalty,30  while  if  the  sum  named  is  al- 
luded to  as  a  penalty  the  burden  is  upon  the  owner 
to  show,  by  a  preponderance  of  proof,  that  it  was 
intended  to  be  and  may  properly  be  considered  as 
liquidated  damages.31  It  has  been  held  that 

29  Ward  v.  Hudson,  etc.,  Co.,          81  Small  v.  Burke,  92  A.  D. 
125  N.  Y.  230.  (N.  Y.)  338. 

«o  Mills   v.    Paul,   30   S.   W. 
558. 


128       LAW  OF  ARCHITECTURE  AND  BUILDING 

where  the  sum  mentioned  is  disproportionate  to 
the  damage  which  will  presumably  or  probably 
ensue,  or  to  a  degree  of  loss  which  is  ascertain- 
able,  it  will  be  construed  as  a  penalty.32  Simi- 
larly, an  agreement  to  build  in  a  specified  time, 
and  in  a  particular  manner,  and  in  the  event  of 
failure  to  meet  these  conditions,  to  pay  a  gross 
sum  specified  in  the  contract  has  been  construed 
to  be  a  penalty.33 

The  element  most  helpful  in  securing  the  inter- 
pretation of  the  contract  provisions  as  provisions 
for  liquidated  damages  is  the  element  of  uncer- 
tainty in  the  ascertainment  of  the  loss  which  will 
result  from  delay.  It  may,  indeed,  be  stated 
broadly  and  as  a  general  rule,  that  in  the  case 
where  it  is  impossible  to  ascertain,  or  where  it  is 
impossible  to  ascertain  with  any  degree  of  exact- 
ness, the  damage  which  will  result  from  the  delay, 
a  situation  will  be  presented  where  the  sum  named 
in  the  contract  as  damages  if  not  clearly  out  of 
proportion  to  the  probable  loss  will  be  considered 
to  be  damages  and  will  not  be  construed  to  be  in 
the  nature  of  a  penalty.34  And  this  may  be  true, 
even  where  the  word  penalty  is  used.35  In  the 

82  Coen     v.     Birchard,     124  to  be  for  damages,  if  house  had 

Iowa    394 — holding    a    proviso  been  for  private  use  as  a  resi- 

for  the  payment  of  $5  a  day  dence. 

a  penalty,  where  the  rental  value  3S  Tayloe     v.     Sandiford,     7 

of    the    building    was    shown  Wheat  (U.  S.)   13,  opinion  by 

to    be    but    $25    per    month;  Marshall,  C.  J. 

and     see     Ward     v.     Hudson  3*  McCullough  v.  Moore,  in 

River,    etc.,    Co.,    125    N.    Y.  Illinois   Appeals   545. 

230 — indicating,    however,    that  3B  McManus  v.  Rothschild,  25 

provision  would  have  been  held  Ontario  L.  R.  138. 


OPERATION  OF  BUILDING  CONTRACT  129 

words  of  the  New  York  Court  of  Appeals  in  one 
of  the  cases  already  cited : 36 

"Whether  the  sum  agreed  between  parties  to  be  paid, 
in  the  event  of  a  breach  of  some  agreement  is  termed  by 
them  a  'penalty/  or  'liquidated  damages,'  is  not  control- 
ling upon  the  question  of  construction.  Their  use  of 
such  words  is  not  always  conclusive  as  to  their  legal 
meaning.  To  get  at  that  we  must  consider  the  subject- 
matter  and  nature  of  the  agreement  and  understand 
clearly  the  intention  of  the  parties.  If  it  shall  then  ap- 
pear that  the  damage  and  loss,  which  may  be  presumed 
to  result  from  non-performance,  are  uncertain  and  in- 
capable of  exact  ascertainment,  then  the  payment  or  lia- 
bility fixed  by  them  must  be  deemed  to  be  liquidated  dam- 
ages and  recoverable  as  such.  Where,  however,  a  sum 
has  been  stipulated  as  a  payment  by  the  defaulting  party, 
which  is  disproportionate  to  the  presumable  or  probable 
damage,  or  to  a  readily  ascertainable  loss,  the  courts  will 
treat  it  as  a  penalty  and  will  relieve;  on  the  principle 
that  the  precise  sum  was  not  of  the  essence  of  the  agree- 
ment, but  was  in  the  nature  of  a  security  for  perform- 
ance. This  subject  has  been  reviewed  in  very  many  opin- 
ions; to  a  few  of  the  more  interesting  of  which,  in  the 
English  reports  and  in  those  of  our  State,  I  direct  atten- 
tion. 

"In  Lowe  v.  Peers  (4  Burr,  2228,  2229),  Lord  Mans- 
field, and  in  Kemble  v.  Farren  (6  Bing.  141),  Tindal, 
C.  J.,  discuss  the  subject.  In  Dakin  v.  Williams  (17 
Wend.  447  and  22  id.  201),  Nelson,  Ch.  J.,  in  the  first  re- 
port, and  Chancellor  Walworth,  in  the  second,  review  the 
question  in  the  light  of  the  English  and  New  York 
cases.  See  also  Hosmer  v.  True,  19  Barb.  106;  Lampman 
v.  Cochran,  16  N.  Y.  275;  Clement  v.  Cash,  21  id.  253; 
Little  v.  Banks,  85  id.  258. 

"The  result  of  an  examination  of  cases  is  to  confirm 

88  Ward  v.  Hudson,  etc.,  Co.,  125  N.  Y.  230. 


130       LAW  OF  ARCHITECTURE  AND  BUILDING 

the  idea  that  it  is  difficult,  if  it  is  even  possible,  to  lay 
down  a  general  rule  applicable  to  all  the  cases  which  arise 
where  parties  have  undertaken  to  provide  against  a  loss 
consequent  upon  a  breach  of  an  agreement.  We  may, 
at  most,  say  that  where  they  have  stipulated  for  a  pay- 
ment in  liquidation  of  damages,  which  are  in  their  nature 
uncertain  and  unascertainable  with  exactness,  and  may 
be  dependent  upon  extrinsic  considerations  and  circum- 
stances, and  the  amount  is  not,  on  the  face  of  the  con- 
tract, out  of  all  proportion  to  the  probable  loss,  it  will  be 
treated  as  liquidated  damages." 

A  provision  for  liquidated  damages  will  not  be 
affected  or  negatived  by  another  clause  in  the  con- 
tract, referring  to  arbitration  the  matter  of  any 
damage  caused  by  delay  in  the  performance  of 
the  work.37 

§  71.  Contract  Not  to  Usurp  Jurisdiction  of 
the  Courts. — Finally,  in  regard  to  the  provisions 
of  the  building  contract  it  should  be  noted  that  the 
courts,  while  ready  to  give  a  broad  construction 
to  all  proper  provisions,  for  the  purpose  of  recog- 
nizing and  enforcing  the  intent  of  the  parties,  will, 
nevertheless,  not  countenance  provisions  which 
are  of  such  a  character  that,  if  enforced,  they  will 
oust  the  courts  of  jurisdiction. 

The  reference  of  disputes  to  arbitration  is  to  be 
encouraged  and  the  parties  may  enter  into  such 
proper  arbitration  covenants  as  they  will,  but  care 
must  be  taken,  if  these  are  to  be  upheld  and  en- 
forced, that  they  do  not  invade  the  province  of  the 
courts,  or  attempt  to  leave  to  arbitration  questions 

87  Drumheller  v.  American  Surety  Co.,  30  Wash.  530. 


OPERATION  OF  BUILDING  CONTRACT  131 

which  it  is  the  natural  duty  and  province  of  the 
courts  to  pass  upon.38 

In  the  case  last  cited  the  Court,  under  the  facts 
there  present,  decided  that  the  clause  in  the  con- 
tract to  which  objection  was  made  was  not  such 
that  it  should  be  held  void  as  tending  to  oust  the 
courts  of  jurisdiction  and  proceeded  thus  to  state 
the  distinction  between  provisions  valid  and  in- 
valid in  this  respect : 

"The  question  presented  by  this  demurrer  is  whether 
the  clause  in  the  contract  above  referred  to,  comes  within 
the  rule  which  nullifies  contracts  ousting  the  courts  of 
their  jurisdiction,  or  within  another  and  equally  well-es- 
tablished rule,  that  parties  may  covenant  that  no  right  of 
action  shall  accrue  until  a  third  person  has  performed 
specific  acts  or  determined  certain  differences  between 
them.  The  line  of  demarcation  between  the  two  classes 
of  cases  is  clear  and  distinct.  The  difficulty,  if  any,  lies 
in  the  application  of  particular  facts  to  a  clearly  defined 
rule.  In  Seward  v.  City  of  Rochester  (109  N.  Y.  168) 
this  rule  was  stated  in  the  following  language :  'The  dis- 
tinction between  executory  agreements  of  arbitration 
which  oust  a  court  of  jurisdiction  and,  therefore,  are  re- 
jected as  a  bar,  and  those  which  are  sustained  as  a  sole 
remedy  between  the  parties,  is  carefully  drawn  and  fully 
discussed  in  Delaware  &  Hudson  Canal  Co.  v.  Pa.  Coal 
Co.  (50  N.  Y.  250).'  In  one  class  it  is  said  'the  parties 
undertake  by  an  independent  covenant  or  agreement  to 
provide  for  an  adjustment  or  settlement  of  all  disputes 
and  differences  by  arbitration  to  the  exclusion  of  courts ; 
and  in  the  other  they  merely,  by  the  same  agreement 
which  creates  the  liability  and  gives  the  right,  qualify 
the  right,  by  providing  that  before  a  right  of  action  shall 

88  National  Contracting  Co.  N.  Y.  439,  reversing  67  A.  D. 
v.  Hudson,  etc.,  Power  Co.,  170  (N.  Y.)  620. 


132        LAW  OF  ARCHITECTURE  AND  BUILDING 

accrue  certain  facts  shall  be  determined  or  amounts  or 
values  ascertained,  and  this  is  made  a  condition  prece- 
dent either  in  terms  or  by  necessary  implication.'  The 
reasons  for  the  rule  thus  clearly  stated  are  fully  set  forth 
in  Delaware  &  Hudson  Canal  Co.  v.  Pa.  Coal  Co.  (supra) 
and  need  not  be  further  adverted  to  here." 

As  a  guide  to  determining  those  cases  in  gen- 
eral where  an  arbitration  stipulation  is  valid,  and 
where,  on  the  other  hand,  it  is  not  valid  because  it 
will  be  construed  to  be  of  such  a  character  that  it 
will  oust  the  courts  of  jurisdiction,  it  may  be 
stated  as  a  general  rule  that  where  the  arbitration 
agreement  merely  provides  that  differences  aris- 
ing under  the  contract  shall  be  submitted  to  arbi- 
tration, under  such  conditions  that  the  decision  of 
the  arbitrators  will  merely  determine  certain  facts 
and  amounts  or  values  in  controversy,  which  in 
themselves  are  conditions  precedent  to  any  right 
of  action,  the  agreement  will  be  upheld.  Such  an 
agreement  merely  qualifies  the  right  of  action  of 
the  claimant  by  providing  the  method  by  which  the 
facts  necessary  to  legal  action  may  be  determined 
and  does  not,  therefore,  so  operate  to  oust  the 
courts  of  jurisdiction  that  it  will  be  considered  to 
be  illegal.39 

39  The  President,  etc.,  of  the      Y.    250 ;    Sweet    v.    Morrison, 
Delaware  &  Hudson  Canal  Co.      116  N.  Y.  19. 
et  al.  v.  Penn.  Coal  Co.,  50  N. 


CHAPTER  IV 
"THE  STANDARD  DOCUMENTS" 

§  72.  In  General, — The  issuance  recently  of 
"The  Standard  Documents  of  the  American  Insti- 
tute of  Architects,"  which  are  copyrighted  by  the 
Institute  and  here  published  as  Appendix  B  by 
special  permission,  is  a  matter  of  more  than  ordi- 
nary importance. 

The  documents  comprise  forms  for  the  agree- 
ment and  general  conditions  of  the  contract,  the 
bond  of  suretyship,  the  subcontract,  the  letter  of 
acceptance  of  the  subcontractor's  proposal  and 
various  other  forms  applicable  to  the  relationship 
and  dealings  of  the  owner  and  the  contractor. 

The  very  evident  care  with  which  the  docu- 
ments have  been  prepared,  and  the  fact  that  they 
have  received  the  approval  of  the  National  Asso- 
ciation of  Builders'  Exchanges,  the  National  As- 
sociation of  Master  Plumbers,  and  the  National 
Association  of  Steam  and  Hot  Water  Fitters,  are 
alike  indicative  of  the  real  advance  marked  by 
their  publication.  The  simplicity  of  expression 
and  general  lack  of  ambiguity  which  character- 
izes them,  together  with  the  broad  scope  of  their 
provisions  should  do  much  to  prevent  misunder- 
standings between  the  owner,  the  contractor  and 
the  architect,  and  to  standardize  on  a  mutually 

133 


134       LAW  OF  ARCHITECTURE  AND  BUILDING 

satisfactory  and  equitable  basis,  the  general 
rights,  duties  and  liabilities  of  the  several  parties. 

The  provisions  with  reference  to  the  owner- 
ship of  drawings,  the  status  of  the  architect,  the 
decisions  of  the  architect,  liens,  the  relations  of 
the  contractor  and  subcontractor,  and  the  rather 
full  provisions  for  arbitration,  are  all  of  special 
interest  to  the  architect. 

The  form  of  the  subcontract  is  so  drawn  that 
the  general  conditions  of  the  contract  as  between 
the  owner  and  the  contractor  are,  by  reference, 
made  a  part  thereof.  This  is  important  in  view 
of  the  various  provisions  in  the  general  condi- 
tions referring  to  the  obligations  of  the  subcon- 
tractor. It  will  be  noted  that  the  provision 
governing  the  ownership  of  drawings  and  speci- 
fications is  a  term  of  the  contract  between  the 
owner  and  the  builder  and  may  with  advantage, 
therefore,  be  supplemented  by  a  specific  agree- 
ment between  the  architect  and  the  owner  to  the 
same  effect,  if  the  latter  desire  to  have  his  owner- 
ship of  the  plans  and  specifications  clearly  estab- 
lished and  in  binding  form  as  between  the  owner 
and  himself. 

The  forms  are  so  prepared  as  to  be  easily  adap- 
table to  any  particular  circumstances  and  provi- 
sion is  made  for  the  addition  by  the  parties  of 
such  special  provisions, — as  for  instance  provi- 
sions for  liquidated  damages — as  they  may  desire. 

The  documents  should  be  read  in  the  light  of 
the  general  rules  and  principles  discussed  in  the 


"THE  STANDARD  DOCUMENTS"  135 

last  two  preceding  chapters  and,  especially,  in  the 
light  of  the  statutory  provisions,  and  of  the 
legal  doctrines,  of  those  particular  jurisdictions 
wherein  they  may  be  used. 


PART  III 
LIENS 


CHAPTER  I 
IN  GENERAL 

§  73.  Definition. — The  application  of  the  law 
of  mechanics'  liens  to  the  varying  relationships  of 
architect,  owner  and  builder  is  so  frequent,  that  it 
seems  appropriate  that  some  mention  in  special 
detail  should  be  made  in  regard  to  it.  At  the 
same  time,  it  must  be  borne  in  mind,  that  the  law 
of  liens  is,  in  itself,  sufficient  to  provide  material 
for  an  entirely  separate  treatise  of  goodly  length. 
The  lien  law  in  a  given  case  can  only  be  properly 
determined  by  a  reference  to  the  particular  laws 
of  the  State  within  the  jurisdiction  of  which  the 
case  arises,  and  the  various  lien  statutes  are  so 
dissimilar,  in  many  and  substantial  details,  al- 
though all  based  upon  substantially  the  same  gen- 
eral basic  principles  and  ideas,  that  in  the  space 
which  can  be  here  allotted  to  the  subject  there 
must,  necessarily,  be  included  statements  merely 
of  the  broader  and  more  fundamental  rules,  to- 
gether with  examples  and  notes  of  such  decisions 
and  statutes  as  are  of  more  than  ordinary  applica- 
bility to  the  architectural  profession  and  its 
problems. 

A  mechanic's  lien  has  been  defined  to  be : 

"A  claim  created  by  law  for  the  purpose  of  securing  a 
priority  of  payment  of  the  price  and  value  of  work  per- 


140       LAW  OF  ARCHITECTURE  AND  BUILDING 

formed  and  materials  furnished  in  erecting  or  repair- 
ing a  building  or  other  structure,  and  as  such  it  at- 
taches to  the  land  as  well  as  the  buildings  erected  there- 
on." 1 

And  again  to  be : 

"a  statutory  lien  upon  buildings  and  other  improvements 
on  realty  and  the  realty,  favoring  certain  classes  of  work- 
men to  secure  them  priority  or  preference  of  payment  of 
compensation  for  work  or  materials."  2 

And  yet  again  to  be : 

"a  modern  statutory  right,  designated  to  encourage  the 
erection  of  improvements,  and  to  protect  those  whose 
labor  and  materials  enter  into  their  construction."  3 

The  lien  may  be  said  to  be  in  the  nature  of  a 
mortgage,4  or  of  a  statutory  quasi-mortgage 
founded  upon  consent,5  or  of  a  notice  of  lis 
pendens  or  attachment.6 

§  74.  History  of  Lien  Legislation. — The  rule 
whereby  a  mechanic,  workman,  laborer,  or  ma- 
terial man,  contributing  by  his  services  to  the  im- 
provement of  realty,  is  now  so  generally  accorded 
the  right  of  a  lienor  was  unknown  at  common  law 
which  neither  recognized  nor  allowed  these  lien 

1VanStone    v.     Stillwell    &  68  Conn.  413;  Kenny  v.  Gage, 

Bierce  Manufacturing  Co.,  142  33  Vt.  302;  Merchants  Insur- 

U.  S.  128,  136.  ance  Co.  v.  Mazange,  22  Ala. 

aTommasi      v.      Archibald,  168;   Pratt  v.  Tudor,  14  Tex. 

114  N.  Y.  A.  D.  838.  37. 

8  Hammond    v.     Darlington,         B  Cummings  v.  Consolidated, 

84    S.    W.     (Missouri,    1904)  etc.,  Water  Co.,  61  Atl.  353. 
446,  449.  6  5  Words  &  Phrases,  4463 ; 

*Loomis  v.  Knox,  60  Conn.  Sawyer    v.    Schick,    30    Okla. 

343;  Throckmorton  v.  Shelton,  353. 


IN  GENERAL  141 

rights.7  Equity,  too,  formerly  failed  to  recognize 
the  lien  doctrine.8 

Gradually  the  feeling  that  one  had  enhanced  the 
value  of  real  estate  by  his  services  or  by  materials 
furnished  or  incorporated  in  the  property,  should 
be  given  a  claim  against  the  property,  as  a  means 
of  securing  the  payment  or  reimbursement  due 
him  for  the  labor  or  materials  given,  became  so 
pronounced  as  to  take  form  in  definite  legislation. 
A  number  of  statutes  were  passed  applying  the 
lien  doctrine  to  certain  localities  in  various  of  the 
States,9  Pennsylvania  appearing  to  have  the  honor 
of  having  in  1803  prepared  the  first  of  the  me- 
chanic's lien  laws.10 

§  75.  Early  Conception  and  Development  of 
Doctrine. — The  earliest  conception  of  a  mechan- 
ic's lien,  as  appears  from  the  title  itself,  was  that 
of  a  statute  designed  to  protect  mechanics,  as 
such.11  It  was  the  extension  of  this  primary  con- 
ception of  the  doctrine  which  resulted  in  the  pro- 
tection under  the  mechanic  lien  laws  not  only  of 

7  Birmingham  Iron  Foundry      Brenckle,  249  111.  394 ;  Ward  v. 
v.  Glen  Cove  Starch  Manfg  Co.,      Yarnelle,  173  Ind.  535. 

78   N.   Y.    30;    Van    Stone   v.  8  Cockerill    v.    Loonam,    36 

Stillwell,  etc.,  Manfg.  Co.,  142  Hun.    (N.  Y.)   353;  Rafter  v. 

U.   S.    128;    Withrow   Lumber  Sullivan,  13  Abbts.  Pr.  (N.  Y.) 

Co.  v.  Glasgow,  etc.,  Co.,  101  262;    Hickey    v.    Schwab,    64 

Fed.  863;  Durling  v.  Gould,  83  How.  Pr.  (N.  Y.)  8;  Heamann 

Me.  134;  Ex  parte  Schmidt,  62  v.  Porter,  35  Mo.  137. 

Ala.  252.  10  Coddington   v.    Dry   Dock 

8  Withrow    Lumber    Co.    v.  Co.,  31  N.  J.  L.  477. 
Glasgow,    etc.,    Co.,    101    Fed.  u  Savannah,  etc.,  R.  Co.  v. 
863;  Slack  v.  Collins,  145  Ind.  Grant,    56   Ga.    68;    Sweet   v. 
569;  Ellision  v.  Jackson  Water  James,  2  R.  I.  270. 

Co.,    12   Cal.   542;    Turnes   v. 


142 

mechanics,  but  of  all  persons,  broadly  speaking, 
who  have  performed  work  upon,  or  perfected  or 
made  repairs  or  improvements  to,  real  prop- 
erty; 12  such  as  house-painters,13  paper-hangers,14 
and  construction  companies.16 

By  extension  of  the  doctrine  and  the  application 
of  greater  liberality  in  the  provisions  of  the  lien 
statutes,  the  mechanic's  lien  law  as  it  now  stands 
was  brought  about  so  that  to-day  provisions  for 
mechanics'  liens  are  to  be  found  not  only  generally 
in  the  States  of  the  United  States  16  but  through- 
out the  various  provinces  of  the  Dominion  of 
Canada  as  well.17  England,  probably  by  reason 
of  the  controlling  precedent  and  effect  of  the  com- 
mon law,  did  not  join  in  the  movement  so  general 
in  the  New  World ; 18  and  while  the  movement  was 
especially  marked  in  the  Southern  States,  as  in 
Texas  and  in  California,  it  was  not  favorably  re- 
ceived in  Mexico.19 

§  76. — Constitutionality. — As  was  naturally  to 
be  expected  in  the  case  of  legislation  of  this  char- 
acter affecting  a  special  class  or  classes,  and  creat- 
ing rights  and  privileges  long  unrecognized,  the 

12  Sweet   v.   James,   2   R.   I.      utes     British     Columbia     1911, 

270.  Ch.   154;   Rev.   Stat.  of  Mani- 

13  Martine  v.  Nelson,  51  111.  toba    1902,    Ch.    no;    Consol. 
422.  Stat.  New  Brunswick  1903,  Ch. 

14  Freeman       v.     Gilpin,     i  147 ;    Consol.    Stat.    of    New- 
Phila.  23.  foundland  1892,  Ch.  88. 

15  Tennis  Bros.  Co.  v.  Wet-  18  Shaw   v.    Young,   87    Me. 
zel,  etc.,  R.  Co.,  140  Fed.  193.  271. 

16  Shaw   v.    Young,   87    Me.  19  Macondray  v.  Simmons,  i 

271.  Cal.  393;  Stowell  v.  Simmons, 

17  Revised    Statutes    Ontario      I  Cal.  452. 
1897,    Ch.    153;    Revised    Stat- 


IN  GENERAL  143 

question  of  its  constitutionality  was  promptly 
raised.  Although,  due  to  special  provisions 
therein,  the  statutes  were,  in  many  instances, 
declared  unconstitutional,  yet,  in  their  broad 
underlying  principle  and  application,  their  con- 
stitutionality has  been  repeatedly,  and  substan- 
tially without  exception,  recognized  and  up- 
held.20 

§  77.  Lien  a  Statutory  Remedy. — Stating,  per- 
haps, in  another  way  the  fact  that  mechanics  liens 
were  unknown  under  the  doctrines  of  the  common 
law,  it  has  been  repeatedly  held  that  they  are  abso- 
lute creatures  of  statute  and  are  to  be  so  con- 
sidered in  determining  their  interpretation  and 
application.21  As  a  corollary  to  the  foregoing 
rule,  it  necessarily  follows  that  a  substantial  ob- 
servance of  all  statutory  requirements  and  provi- 
sions is  essential  and  a  condition  precedent  to  the 
validity  and  enforcement  of  the  lien,  and  that 

40  Brooks    v.     Railway    Co.,  124  Ga.  892;  First  Natl.  Bank, 

101  U.  S.  443 ;  Davis  v.  Alvord,  etc.,    v.    Trigg    Co.,    106    Va. 

94  U.  S.  545 ;  Glacius  v.  Black,  327. 

67  N.  Y.  563;   Newark  Lime,  **Van    Stone    v.    Stillwell, 

etc.,  Co.  v.  Morrison,  13  N.  J.  etc.,  Manfg.  Co.,  142  U.  S.  128; 

Eq.    133;    Blauvelt    v.    Wood-  Withrow   L.    Co.    v.    Glasgow, 

worth,  31  N.  Y.  285;  Schillin-  etc.,   Co.,   101    Fed.   863;    Bir- 

ger  Fireproof  Cement,  etc.,  Co.  mingham  I.  F.  Co.  v.  Glen  Cove 

v.  Arnott,  86  Hun.  N.  Y.  182;  Starch  Manfg.   Co.,  78  N.  Y. 

affirmed  152  N.  Y.  584;  White  30;    Frost    v.    Ilsley,    54    Me. 

v.  Miller,  18  Pa.  St.  52;  Whit-  345;    Wolf  v.    Pa.   R.    Co.,  29 

tier   v.    Wilbur,   48   Cal.    175 ;  Pa.  Superior  Court  439 ;  United 

Booth  v.  Pendala,  88  Cal.  36;  States   Blowpipe  Co.  v.   Spen- 

Laird  v.  Moonan,  32  Minn.  358;  cer,    40    W.    Va.    698;    Joplin 

McKeon  v.    Sumner   Building,  Supply  Co.  v.  West,   149  Mo. 

etc.,   Co.,   51    La.    Ann.    1961;  App,  78;  Dufresne  v.  Prefon- 

Prince    v.    Neal    Millard    Co.,  taine,  21  Can.  Sup.  Ct.  607. 


144        LAW  OF  ARCHITECTURE  AND  BUILDING 

the  notice  of  lien  must  itself  comply  with  the 
terms  of  the  statute  in  all  substantial  particu- 
lars.22 

§  78.  No  Personal  Liability. — The  mechanic's 
lien  being  fundamentally  and  essentially  a  claim 
against  realty,  it  follows  naturally  that  no  per- 
sonal liability  is  created  thereunder,  whether  as 
against  the  owner  or  as  against  anyone  who,  in 
the  absence  of  statutory  provision,  would  be  under 
no  personal  liability  to  the  lienor.23 

The  fact  already  noted,  that  in  every  case,  in 
determining  lien  rights,  reference  must  be  made 
to  the  particular  statute  involved,  must  not  be  lost 
sight  of,  however,  and  no  statutory  lien  can  be 
acquired  in  any  event  by  one  who  cannot  properly 
be  classified  as  coming  within  the  provisions  of 
the  special  statute  under  which  he  claims.  For 
instance,  under  a  statute  which  gives  a  lien  to 
masons  and  to  carpenters,  a  plasterer  may  not  be 
allowed  to  come  in  as  a  lienor.24 

§  79.  Necessity  of  Contract. — It  should  be 
noted  here  that  as  to  all  mechanics'  liens  it  is  a 
general  rule  that  a  contract,  direct  or  indirect,  to 
which  the  owner  of  the  property  is  a  party,  cover- 
ing the  work  in  connection  with  which  the  labor  or 

32  Tenth    National    Bank   of  2S  Crystal  v.  Flannelly,  2  E. 

Philadelphia    v.     Smith    Con-  D.  Smith  (N.  Y.)  583;  Cox.  v. 

struction  Co.,  218  Pa.  St.  581,67  Broderick,  4  E.  D.  Smith   (N. 

Atlantic  872;  Wharton  et  al.  v.  Y.)  721;  Delafield  v.  Sayre,  31 

Real    Estate    Inv.    Co.    et    al.,  Vroom   (N.  J.)  449;  Garrison 

180  Pa.  St.  168,  36  Atlantic  725 ;  v.    Borio,   61    N.   J.    Eq.   236; 

Knelly    v.    Horwath,    208    Pa.  Bonncy    v.    Ketcham,    51;    111. 

St.  487,  57  Atlantic  957.  App.  321. 

**  Fox  v.  Rucker,  30  Ga.  525. 


IN  GENERAL  145 

material  for  which  the  lien  is  claimed  is  performed 
or  furnished,  is  a  condition  precedent  to  the  at- 
taching of  the  lien.25 

In  addition  to  the  prices  specified  by  the  con- 
tract the  lien'  includes  the  value  of  extra  work 
done  or  materials  furnished.26  In  New  York  and 
other  States  this  doctrine  has  been  restricted  to 
the  cases  where  the  extras  are  furnished  pursuant 
to  an  agreement  between  the  owner  and  con- 
tractor, and  in  accordance  with  the  terms  of  the 
contract,  in  the  absence  of  a  waiver  thereof.27 
But  in  Massachusetts  in  a  decision  by  Mr.  Justice 
Holmes,  before  the  latter's  appointment  to  the 
Federal  Supreme  Court,  the  Court  recognized  an 
implied  authority  in  the  contractor  to  sublet  por- 
tions of  the  work,  and  sustained  the  right  of  his 
subcontractor  to  a  lien  for  extra  work.28 

It  may  be  stated  as  a  general  rule  that  while  the 
necessity  of  a  contract  direct  or  indirect  is  clear 
as  has  been  noted,  this  contract  need  not,  unless 
the  statute  expressly  require  it,  be  in  writing  to  be 

26  Cornell  v.   Barney,  94  N.  Ind.   683;    Webster   City,   etc., 

Y.  394;   Knapp  v.   Brown,  45  Co.   v.    Chamberlin,   137   Iowa 

N.  Y.  207;  Muldoon  v.  Pitt,  54  717;    Cole   v.    Clarke,   85    Me. 

N.  Y.  269;   Entenman  v.  An-  336;   Horn,  etc.,  Co.  v.   Steel- 

derson,  106  N.  Y.  A.  D.  149;  man,  215  Pa.  St.  187. 
Meyers  v.  Daly,  7  Daly  (N.  Y.)          2«Costello   v.   Dale,   i    Hun. 

471 ;  Belding  v.  Cushing,  i  Gray  (N.     Y.)     489;     Marshall     v. 

(Mass.)  576;  Simpson  v.  Dal-  Cohen,  11  Misc.   (N.  Y.)   397; 

rymple,    II    Cushing    (Mass.)  Rush  v.  Able,  90  Pa.  St.  153. 
308 ;  Herell  v.  Donovan,  7  App.         *7  Foley   v.   Alger,   4   E.    D. 

Cases    (D.    C.)    322;    General  Smith  (N.  Y.)  719;  134;  Coo r- 

Supply   Co.   v.   Hunn,   126   Ga.  sen  v.  Ziehl,  103  Wis.  381. 
615;  Wendt  v.  Martin,  89  111.          28  Perry   v.   Potashinski,   169 

139;   Coburn  v.   Stephens,   137  Mass.  351. 


146       LAW  OF  ARCHITECTURE  AND  BUILDING 

effective  to  support  a  lien.29  While  in  some 
States,  an  implied  contract  was  formerly  not  con- 
sidered sufficient  to  support  a  lien,30  yet  in  other 
jurisdictions,  including  New  York,  the  lien  has 
been  regularly  sustained  notwithstanding  the  fact 
that  the  contract  has  been  by  implication  merely.31 

39  Mornan     v.     Carroll,     35  Manchester  v.  Searle,  121  Mass. 

Iowa  22;  Montandon  v.  Deas,  418. 

14  Ala.  33.  81  Muldoon  v.  Pitt,  54  N.  Y. 

30  Rowley  v.   James,   31    111.  269 ;     Hazard,     etc,     Co.     v. 

298,    but    see    amendment    to  Loomis,  2  Disney  (Ohio)  544; 

laws,  same  case,  note;  Parker  |Vail   v.    Meyer,   71    Ind.    159; 

v.   Anthony,   4   Gray    (Mass.)  Carney  Bros.  v.  Cook,  80  Iowa 

289;    but   see   contra    dicta    in  747. 


CHAPTER  II 
THE  LIEN  OF  THE  ARCHITECT 

§  80.  Development  of  Doctrine. — Enough  has 
been  said  of  the  history  of  lien  legislation  to  make 
clear  why  it  was  that  under  the  early  statutes,  and 
the  early  conception  of  the  purposes  and  effect  of 
lien  legislation,  an  architect  could  not  avail  him- 
self of  the  advantages  of  a  mechanic's  lien. 
Under  the  modern  extension  of  the  lien  doctrine, 
however,  an  architect  has,  quite  properly  and  very 
generally,  been  considered  as  coming  within  the 
limitations  and  qualifications  laid  down  by  the 
various  State  statutes,  although  there  is  found  a 
natural  and  considerable  divergence  of  opinion  in 
the  laws  of  the  different  States  as  to  the  extent  of 
the  lien  to  which  he  is  entitled,  and  the  character 
of  the  work  required  to  qualify  him  as  a  proper 
lienor.  In  New  York  the  statute  provides  that 

"A  contractor,  subcontractor,  laborer  or  material  man 
who  performs  labor  or  furnishes  materials  for  the  im- 
provement of  real  property  with  the  consent  or  at  the 
request  of  the  owner  thereof,  or  of  his  agent,  contractor 
or  subcontractor,  shall  have  a  lien  for  the  principal  and 
interest  of  the  value  or  the  agreed  price,  of  such  labor 
or  materials  upon  the  real  property  improved  or  to  be 
improved  and  upon  such  improvement,  from  the  time  of 
filing  a  notice  of  such  lien  as  prescribed  in  this  article."  1 

1  Sec.  3,  Article  2,  New  York  Lien  Law. 


148       LAW  OF  ARCHITECTURE  AND  BUILDING 

The  courts  in  construing  the  language  of  the  sec- 
tion quoted  have  been  liberal  in  interpreting  the 
meaning  of  the  term  laborer,  as  there  applied,  and 
have  held  that  this  term  applies  to  skilled,  as  well 
as  to  unskilled,  labor,  and  includes  the  profes- 
sional services  of  architects.2 

As  early  as  January,  1879,  the  Court  of  Ap- 
peals of  New  York,  in  a  case  arising  under  a 
mechanic's  lien  law  of  1862,  and  already  referred 
to,  stated  that : 

"The  general  principle  upon  which  the  lien  laws  pro- 
ceed, is  that  any  person  who  has  contributed  by  his  labor, 
or  by  furnishing  materials  to  a  structure  erected  by  an 
owner  upon  his  premises,  shall  have  a  claim  upon  the 
property  for  his  compensation. 

"The  dealer  who  furnishes  the  paints  and  oils,  the 
ordinary  workman  who  applies  them  or  the  artist  who 
uses  his  skill  and  taste  in  executing  a  mural  painting,  are 
alike  protected  by  the  act.  And  an  architect  who  makes 
the  plans  and  supervises  the  erection  of  a  building  is 
within  the  words  and  reason  of  the  law."  3 

§81.  Importance  of  Superintendence. — The 
decisions  in  the  various  States  bearing  upon  the 
right  of  the  architect  to  the  benefits  of  the  lien 
laws  vary  considerably,  according,  largely,  to  the 
tendencies  of  the  various  jurisdictions  in  regard 
to  lien  legislation.  But  there  is  one  very  general 
element  which  will  be  found  to  exist  in  the  ma- 

2  Rinn    v.    Electrical    Power  76  N.  Y.  50,  reversing  10  Hun.. 

Co.,  3  N.  Y.  A.  D.  305;  Thorn-  (N.  Y.)    18. 

son-Starrett    Co.    v.    Brooklyn  8  Stryker  v.   Cassidy,   76  N. 

Heights  Realty  Co.,  in  N.  Y.  Y.  50,  supra. 
A.  D.  358;  Stryker  v.  Cassidy, 


THE  LIEN  OF  THE  ARCHITECT  149 

jority  of  the  cases  where  liens  have  been  allowed, 
and  that  is  the  element  of  superintendence.  In  a 
great  number  of  cases  decided  in  New  York, 
New  Jersey,  Pennsylvania,  and  in  the  Federal 
jurisdiction  this  element  is  found  in  each  in- 
stance.4 In  all  of  the  cases  last  cited  the  lien  of 
the  architect  was  upheld,  but  in  all,  as  noted,  the 
element  of  superintendence  was  present.  In 
some  instances  an  exception  to  the  general  rule 
has  been  applied  and  the  lien  of  the  architect  has 
been  allowed  where  superintendence  was  lack- 
ing; 5  but  again,  even  where  the  architect  has  pre- 
pared plans  and  specifications  and  given  general 
directions  to  the  builder,  where  it  appears  that  the 
building  has  been  erected  under  the  special  super- 
intendence of  the  builder,  a  lien  has  been  refused.6 
Where  there  occurs  a  change  of  ownership  of  the 
property  in  connection  with  which  the  work  is 
done,  and  it  is  agreed  by  the  new  owner  that  cer- 
tain additional  work  shall  be  done  under  the  super- 
vision of  the  architect  of  the  building,  the  lat- 

*  Hubert  v.  Aitken,  15  Daly  506 ;     Arnold!     v.     Gouin,    22 

(N.  Y.)   237;  Stryker  v.  Cas-  Grant's  Chan.    (Ontario)   314; 

sidy,    76    N.    Y.    50;    and    see  Taylor  v.  Gilsdorff,  74  111.  354; 

Gurney   v.   Atlantic,   etc.,   Co.,  Knight    v.    Norris,    13    Minn. 

58    N.    Y.    358,    distinguishing  473;  Friedlander  v.  Taintor,  14 

Ericsson  v.  Browne,  38  Barb.  N.  D.   (104  N.  W.  527),  393; 

(N.  Y.)   390;   Mutual  Benefit,  Field    v.    Consolidated    Water 

etc.,  Co.  v.  Rowand,  26  N.  J.  Co.,  25  R.  I.  319;  Von  Dorn  v. 

Eq.    389,    reversed    on    other  Mengedoht,  41  Neb.  525 ;  Mulli- 

grounds,   12  C.  E.  Green    (N.  gan  v.  Mulligan,  18  La.  Ann.  21. 

J.)     604.    Bank    of    Penn.    v.  5  Freeman    v.    Rinaker,    185 

Gries,  35  Pa.  St.  423;  Phoenix  111.    172;    Henry,    etc.,    Co.    v. 

Furniture,  etc.,  Co.  v.   Put-In  Halter,  58  Neb.  685. 

Bay   Hotel   Co.,  66  Fed.   683;  •  Raeder  v.  Pensberg,  6  Mo. 

Johnson  v.  McClure,  10  N.  M.  App.  445. 


ISO       LAW  OF  ARCHITECTURE  AND  BUILDING 

ter  having  given  his  services  to  this  work,  is 
rightly  held  to  be  entitled  to  a  lien,  irrespective  of 
the  transfer  of  title  to  the  building.7 

§  82.  The  New  York  Doctrine. — In  New  York 
it  has  been  definitely  determined  that  the  architect 
is  not  entitled  to  a  mechanic's  lien  for  the  prepara- 
tion and  furnishing  of  plans  and  specifications, 
unless,  in  addition,  he  superintend  the  work  done 
thereunder.8  Where,  however,  the  architect  does 
superintend  the  work,  done  pursuant  to  the  plans 
and  specifications  which  he  has  prepared,  it  is  now 
the  clearly  established  doctrine  of  the  New  York 
courts  that  he  will  be  allowed  to  recover,  not 
merely  for  the  work  done  in  his  capacity  as  super- 
intendent, but  for  the  preparation  of  the  plans  and 
specifications  as  well.9  For  his  disbursements 

7  Libbey  v.  Tidden,  192  Mass.  the   Maine  statute   allowing  a 
175.  lien    for    materials    furnished 

8  Swasey  v.  Granite,  etc.,  Co.,  and    labor   performed,    a   pre- 
158  N.  Y.  A.  D.  549;  Rinn  v.  pared   plan   of   a  house,   or  a 
Electric    Power    Co.,    3    App.  model  of  a  ship,  or  a  mould  by 
Div.  (N.  Y.)  305,  distinguishing  which  the  ship's  timbers  were 
Stryker  v.  Cassidy,  76  N.  Y.  50,  to    be    formed,    did   not    enter 
which    in    turn    distinguished  into  the  structure  in  such  man- 
Aitken   v.   Wasson,  24   N.   Y.  ner  that  they  could  be  regarded 
482,  and  Coffin  v.  Reynolds,  37  as  falling  within  the  terms  of 
N.  Y.  640,  and  reversed  Stryker  the   statute — and  see   Bank  v. 
v.  Cassidy  in  the  court  below,  Gries,  35  Pa.  St.  423. 

10  Hun.  (N.  Y.)   18;  Aimes  v.          9  Embury  v.  42d  St.  &  Madi- 

Dyer,  41  Me.  397,  where  an  ar-  son  Ave.  Co.  et  al.,  N.  Y.  L. 

chitect  sued   for  the  value  of  J-  April  i6th,  1915;  Spannhake 

work  performed  in  preparing  a  v.   Mountain  Construction  Co. 

set  of  moulds  for  the  construe-  et  al.,  159  A.  D.  (N.  Y.)  727; 

tion  of  a  ship,  and  for  materi-  and  see  Swasey  v.  Granite,  etc., 

als  used  in  such  construction,  Co.,   158  A.   D.    (N.   Y.)    549, 

and  the  court  held  that  under  supra. 


THE  LIEN  OF  THE  ARCHITECT  151 

and  expenses  incidental  to  superintendence  the  ar- 
chitect may  recover  in  full.10 

Where  plans  and  specifications  for  a  proposed 
building  are  prepared,  and  these  preliminary  plans 
are  thereafter  abandoned  and  the  building  erected 
pursuant  to  other  plans  and  specifications,  no  lien 
will  attach  for  the  preparation  of  the  abandoned 
plans  and  specifications.11 

§  83.  The  Massachusetts  Doctrine. — One  of 
the  clearest  expositions  of  the  doctrine  that  while 
the  architect  may  have  a  lien  for  labor  performed 
by  him  in  supervising  the  erection  of  a  building, 
yet  his  lien  will  not  extend  to  labor  performed  in 
the  preparation  of  plans  and  specifications,  is 
to  be  found  in  the  opinion  of  former  Chief 
Justice  Knowlton  of  the  Massachusetts  Supreme 
Court,  delivered  when  he  was  an  Associate  Justice 
of  that  court,  of  which  Mr.  Justice  Holmes,  now 
of  the  Supreme  Court  of  the  United  States,  was 
likewise  at  that  time  a  member.  The  Massachu- 
setts statute  provided  that  a  lien  might  be  had  for 
"labor  performed  or  furnished  .  .  .  and  actually 
used  in  the  erection"  of  the  building,  and  Judge 
Knowlton  said : 

"The  questions  presented  by  this  case  are,  first,  whether 
an  architect,  who  has  drawn  plans  and  prepared  speci- 
fications for  the  construction  of  five  houses  under  a  con- 
tract to  draw  the  plans  and  specifications  and  supervise 
the  construction  of  the  houses,  and  who  has  supervised 
the  construction  of  one  of  the  houses  until  it  was  about 

10  Rinn  v.  Electric  etc.,  Co.,  |J1  Buckingham  v.  Flummer- 
3  A.  D.  (N.  Y.)  305,  supra.  felt,  15  N.  Dak.  1 12. 


152        LAW  OF  ARCHITECTURE  AND  BUILDING 

half  completed,  and  supervised  the  work  of  putting  in  the 
foundations  of  two  of  the  others,  involving  an  expendi- 
ture of  about  forty  dollars  upon  one  and  about  fifteen  dol- 
lars upon  the  other,  can  have  a  lien  under  the  Pub.  Sts. 
c.  191,  for  the  whole  amount  due  him ;  and  secondly,  if  he 
can  not,  whether  he  can  have  a  lien  for  the  value  of  his 
services  in  supervising  the  work  upon  the  buildings,  con- 
sidered apart  from  the  preparation  of  the  plans  and  speci- 
fications. 

"The  Statutes  of  the  different  States  in  regard  to 
mechanics  liens  differ  materially  in  their  provisions,  and 
the  cases  show  a  considerable  conflict  of  authority  upon 
the  questions  before  us.  But  we  are  of  opinion  that,  un- 
der statutes  similar  to  ours,  the  weight  of  judicial  opinion 
is  in  favor  of  holding  that  the  services  of  an  architect  in 
preparing  plans  and  specifications  for  a  building  are  not 
the  kind  of  labor  intended  to  be  protected  by  the  statute, 
and,  on  the  other  hand,  that  services  upon  a  building  in 
supervising  the  work  of  construction  enters  directly  into 
the  construction  so  as  fairly  to  be  called  'labor  performed 
or  furnished  .  .  .  and  actually  used  in  the  erection'  of 
a  building,  within  the  meaning  of  these  words  in  §  i 
of  the  Statute  above  cited.  It  is  also  generally  held  that 
the  fact  that  one  who  does  such  work  is  an  architect 
does  not  prevent  him  from  recovering  for  this  kind  of 
service,  which  is  often  performed  by  an  intelligent  me- 
chanic. This  is  the  doctrine  of  the  highest  court  in  Penn- 
sylvania, where  the  provisions  of  the  statute  are  simi- 
lar to  ours.  (Price  v.  Kirk,  90  Penn.  St.  47;  Rush  v. 
Able,  90  Penn.  St.  153 ;  Bank  of  Pennsylvania  v.  Cries,  35 
Penn.  St.  423.)  Under  a  like  statute  in  Missouri,  it  was 
held  in  Raeder  v.  Bensberg,  6  Mo.  App.  445,  that  the 
services  of  an  architect  'in  drawing  plans  and  specifica- 
tions and  giving  directions  to  the  builder  under  whose 
special  superintendence  the  house  is  being  erected,  can  not 
be  called,  in  any  proper  sense  of  the  words,  "work  or 
labor  upon  the  building."  '  A  similar  decision  was  made 


THE  LIEN  OF  THE  ARCHITECT  153 

in  Foushee  v.  Grigsby,  12  Bush  (Ky.)  75;  Ames  v. 
Dyer,  41  Maine  397,  was  a  case  arising  under  a  statute 
giving  a  lien  for  labor  performed  and  materials  fur- 
nished 'for  or  on  account  of  any  vessel  building  or 
standing  on  the  stocks,'  etc.,  and  the  attempt  was  to  estab- 
lish a  lien  for  a  mould  constructed  and  used  to  form  the 
timbers  for  a  ship.  The  Court  said  that  'the  plan  of  a 
house,  the  model  of  a  ship,  the  moulds  by  which  its  tim- 
bers are  to  be  hewed,  may  be  necessary  and  even  indis- 
pensable, but  they  do  not  enter  into  any  structure  so  as 
to  be  a  part  of  its  materials,  and  cannot  be  regarded  as 
within  the  proviso  of  the  statute.'  .  .  . 

"The  preparation  of  plans  and  specifications  is  a  pre- 
liminary to  the  construction  of  a  building,  and  is  often 
merely  tentative.  It  may  or  may  not  be  followed  by  a 
construction  according  to  the  plans.  It  is  seldom  that 
either  the  external  or  internal  form  of  a  building  is  de- 
termined upon,  or  that  its  identity  is  anything  more  than 
an  indefinite  mental  conception  until  after  the  plans  have 
been  completed.  We  are  of  opinion  that  this  professional 
work  of  the  architect,  in  bringing  into  existence  the  defi- 
nite form  and  conception  of  a  building  which  may  be 
erected  if  the  landowner  adopts  the  plan,  is  not  'labor 
performed  or  furnished  .  .  .  and  actually  used  in  the 
erection'  of  a  building  within  the  meaning  of  our  stat- 
ute. 

"We  are  of  opinion  that  the  work  of  supervision  which 
is  done  directly  upon  the  building,  and  which  is  partly 
physical,  but  in  its  more  important  part  mental,  may  be 
the  subject  of  a  lien  under  our  statute,  even  if  done  by  the 
same  person  who  prepared  the  plans  as  an  architect."  12 

As  a  logical  development  of  the  Massachusetts 
doctrine  it  is  further  held  in  that  State  that,  where 
the  contract  is  entire  and  not  separable,  and  the 
amount  due  to  the  architect  for  services  rendered 

"Mitchell   v.    Packard,    168  Mass.  467. 


154       LAW  OF  ARCHITECTURE  AND  BUILDING 

in  the  supervision  of  the  work,  as  distinguished 
from  services  rendered  in  the  preparation  of 
plans  and  specifications,  can  not  be  determined,  a 
lien  even  for  the  work  of  supervision  will  be  re- 
fused.13 

§  84.  The  Doctrines  Contrasted — Discussion. 
— While  the  New  York  and  Massachusetts  doc- 
trines have  been  developed  under  statutes  which 
vary  in  their  provisions  and  phraseology,  and 
while  under  the  Massachusetts  statutes  the  rule 
laid  down  by  the  courts  of  that  State  may  be 
taken  as  legally  correct,  the  broader  interpretation 
made  possible  by  the  provisions  of  the  New  York 
statutes,  and  by  the  interpretation  thereof  by  the 
New  York  courts,  seems  certainly  entirely  proper 
and  equitable.  It  is  difficult  to  understand  why 
an  architect  who  has  devoted  his  best  effort  and 
many  hours  of  his  time  to  the  preparation  of 
plans  and  specifications,  and  who  has  superin- 
tended the  work,  should  not  be  allowed  adequate 
protection  under  the  lien  laws,  while  that  protec- 
tion is  accorded  to  the  ordinary  contractor  or  ma- 
terial man.  The  plans  and  specifications  of  the 
architect,  in  a  very  real  sense,  enter  into  and  make 
possible,  the  improvement  of  the  property.  As  a 
matter  of  good  sense  and  of  equity,  it  would  in- 
deed seem  that  he  should  ultimately  be  accorded 
a  lien  for  the  preparation  of  plans  and  specifica- 
tions irrespective  of  whether  he  has  superintended 
the  work  or  not,  provided  that  the  work  has  been 
carried  out  in  accordance  with  his  plans  and  in 

13Libbey  et  al.  v.  Tidden  et  al.,   192  Mass.   175. 


THE  LIEN  OF  THE  ARCHITECT  155 

accordance  with  the  specifications  prepared  by 
him. 

§  85.  Reference  to  Particular  Statute  Essential. 
— It  must  be  borne  in  mind  always  that  the  al- 
lowance or  non-allowance  of  the  lien  is  based  pri- 
marily and  fundamentally  on  the  language  of  the 
particular  statute  involved.  Under  some  statutes 
a  lien  may  be  allowed  for  work  and  materials  only ; 
under  others,  the  statute  may  include  alterations ; 
and  yet  others  may  specify  that  the  lien  is  allowed 
for  the  erection  of  the  building.  In  New  Jersey, 
for  instance,  a  lien  has  been  refused  for  a  mere 
alteration,14  but  has  been  allowed  for  an  addition 
to  a  building,15  while  in  New  York  the  courts  in- 
quire primarily  whether  or  not  the  improvements 
have  become  a  part  of,  and  incorporated  in,  the 
property;  if  they  have,  the  mere  fact  that  they 
are  designed  for  special  purposes,  such  as  their 
use  in  outfitting  the  premises  for  the  business  pur- 
poses of  the  tenant,  does  not  affect  the  right  to  the 
lien.16 

§  86.  Lien  by  Contract. — While  it  is  true,  as 
has  been  noted,  that  the  lien  is  purely  a  creature 
of  statute  and  dependent  upon  the  statute,  the 
owner  may  yet  create  mechanic's  lien  rights,  or 
perhaps,  more  exactly  speaking,  rights  of  a  char- 
acter similar  to  a  mechanic's  lien,  by  contract,  be- 
tween him  and  the  architect,  or  other  person  fur- 
nishing the  labor  or  material.  I  say  that  it  is 

14 Updike  v.  Skillman,  27  N.  "Updike  v.  Skillman,  27  N. 

J.  L.  131,  holding  the  addition  J.  L.  131,  supra. 

of  an  extra  story  to  a  building  16  Mosher  v.  Lewis,  10  N.  Y. 

an  alteration  merely.  Misc.  373. 


156        LAW  OF  ARCHITECTURE  AND  BUILDING 

more  exact  to  speak  of  these  rights,  when  created 
thus  by  contract,  as  rights  similar  to  mechanics' 
lien  rights,  for  the  reason  that  the  true  mechanic's 
lien  is  always  a  creature  of  statutory  enactment, 
rather  than  of  private  contract  or  agreement.17 

§  87.  Lighting  Fixtures. — The  law  was  some- 
what slow  in  recognizing  the  right  to  a  lien  for 
lighting  fixtures  as  distinguished  from  improve- 
ments more  strictly  permanent,  for  the  reason 
that  lighting  fixtures  are,  ordinarily,  of  such 
character  that  they  may  be  easily  separated  from 
the  realty  proper,  and  were  not,  therefore,  at  first, 
nor  until  comparatively  recently,  considered 
proper  bases  for  a  mechanic's  lien.  Gradually 
the  strictness  of  the  rule  in  this  connection  was  re- 
laxed, however,  and  a  determination  finally  es- 
tablished, that  in  the  case  of  specially  designed 
electric  lighting  fixtures  applicable  to  a  special 
purpose  and  especially  made  to  harmonize  with, 
or  become  a  definite  and  important  part  of,  the 
structure  proper,  a  lien  would  be  allowed.18 

The  New  York  Legislature  in  1914  took  the 
last  radical  step  in  the  development  of  the  lien  doc- 
trine in  the  matter  of  lighting  fixtures  by  specif- 
ically providing,  that  a  lien  might  be  had  for  serv- 
ices rendered  in  furnishing  and  installing  electric 
lighting  fixtures.  In  making  this  provision,  the 
statute  made  no  distinction  between  specially  de- 

17Lippincott  v.  Yorke,  86  A.  D.  17;  Embury  v.  426  St.  & 

Tex.  276.  Madison  Ave.  Co.  et  al.,  N.  Y. 

18Wahle,  etc.,  Co.  v.  SQth  St.  Law  Journal,  April  i6th,  1915. 
Ik  Madison  Ave.  Co.,  153  N.  Y. 


THE  LIEN  OF  THE  ARCHITECT  157 

signed  and  ordinary  fixtures  and  as  the  law  now 
stands,  therefore,  this  distinction  has  been  abol- 
ished and  a  lien  may  be  had  for  the  manufacture 
and  installation  of  fixtures  generally.  The  terms 
of  the  amendment  are  as  follows,  the  portion  itali- 
cized being  the  matter  added  by  the  amendment 
of  1914: 

"Improvement.  The  term  improvement,  when  used 
in  this  chapter,  includes  the  erection,  alteration  or  repair 
of  any  structure  upon,  connected  with,  or  beneath  the 
surface  of,  any  real  property  and  any  work  done  upon 
such  property,  or  materials  furnished  for  its  permanent 
improvement,  and  shall  also  include  any  work  done  or 
materials  furnished  in  equipping  any  such  structure  with 
any  chandeliers,  brackets  or  other  fixtures  or  apparatus 
for  supplying  gas  or  electric-light."  19 

§  88.  Consent  of  Owner. — By  reason  especially 
of  the  modern  development  of  apartments,  office 
buildings  and  similar  properties,  the  importance 
of  the  right  to  a  lien,  where  the  work  has  been 
done  for  a  tenant  and  not  merely  for  the  owner 
direct,  has  been  emphasized  more  and  more  of  re- 
cent years. 

Where  the  work  is  done  at  the  request  of  a 
tenant,  the  lien  may  be  enforced,  if  it  be  shown 
that  the  owner  has  consented  to  and  approved  the 
doing  of  the  work  in  the  expectation  that  he  will 
derive  benefit  therefrom,20  and  this  irrespective 
of  whether  there  is  or  is  not  a  direct  contract  rela- 
tionship between  the  owner  and  the  contractor. 

10  New  York  Laws,  1914,  ch.  20  Kerwin  v.  Post,  120  N.  Y. 
506.  A.  D.  179. 


158       LAW  OF  ARCHITECTURE  AND  BUILDING 

This  doctrine  proceeds 

"upon  the  idea  that  he  who  furnishes  materials  for 
or  does  labor  upon  a  building  should  be  reimbursed 
to  some  just  extent  out  of  the  improvement,  of  which 
the  owner  gets  the  benefit,  .  .  .  All  that  the  Statute  re- 
quires as  the  condition  of  the  lienor's  right  to  such  re- 
imbursement is  that  the  labor  shall  be  done  upon  or  the 
material  furnished  for  the  building  in  process  of  con- 
struction, with  the  assent  of  the  owner  or  of  the  con- 
tractors." 21 

If  it  be  shown  that  the  owner  did  not  consent  to 
the  work  being  done,  but  that,  on  the  contrary, 
the  work  was  contracted  for  by  the  lessee  entirely 
on  his  own  account  and  after  the  owner  had 
specifically  refused  to  bear  any  of  the  expense 
thereof,  the  lien  will  not  be  enforced.22 

The  consent  of  the  owner  need  not,  necessarily, 
be  express,  but  may  be  implied,  as  well.  If  he  ap- 
prove the  work  and  receive  the  benefit  accruing 
therefrom,  he  will  be  held  to  have  impliedly  con- 
sented that  it  be  done.  He  can  not  stand  idle  and 
allow  the  work  to  be  done  and  the  benefit  thereof 
to  accrue  to  his  property  and  then  turn  about  and 
attempt  to  defeat  the  lien  by  the  plea  that  his  con- 
sent has  not  been  given.23  Stating  substantially 
the  same  rule,  in  slightly  different  phraseology, 
it  has  been  said  that  the  lien  statute  in  New  York 
"proceeds  upon  the  equitable  principle  that  one 
who  knowingly  receives  the  benefit  of  the  labor  or 

21  Pell  v.  Baur,  133  N.  Y.  377.         *»  National  Wall-paper  Co.  v. 

22  McNulty  v.  Offerman,  164      Sire,  163  N.  Y.  122 ;  and  see 
N.  Y.  A.  D.  949.  Otis  v.  Dodd,  90  N.  Y.  336. 


THE  LIEN  OF  THE  ARCHITECT  159 

property  of  another  in  the  form  of  improvements 
upon  his  land,  ought  to  have  his  property  sub- 
jected to  a  lien  for  the  value  of  such  improve- 
ments." 24 

24  Butler  v.  Flynn,  51  N.  Y.  A.  D.  225;  and  see  also  Nellis  v. 
Bellinger,  6  Hun.  N.  Y.  560. 


CHAPTER  III 
THE  LIEN  OF  THE  CONTRACTOR 

§  89.  Classes  of  Lienors. — In  considering  the 
right  of  the  contractor,  or  subcontractor,  or  ma- 
terial man,  or  mechanic,  to  a  lien,  it  must,  im- 
primis, be  recognized  that  there  is  a  clear  distinc- 
tion in  the  lien  laws  between  these  various  classes. 
The  rule  has  been  stated  to  be  that  if  the  claim- 
ant's "charge  is  for  materials  alone,  then  he  is  a 
material  man ;  if  his  charge  is  for  work  and  labor 
in  putting  the  materials  in  the  building,  then  he  is 
a  contractor  for  the  erection  of  the  building;"  * 
but  this  rule  has  later  been  held  too  narrow,  in  that 
one  furnishing  and  placing  in  the  building  ma- 
terials in  finished  form  should  be  allowed  to  claim 
as  a  material  man  just  as  readily  as  one  furnish- 
ing raw  materials  alone.2 

Where  the  contract  under  which  the  lien  is 
claimed  is  a  direct  contract  between  the  owner  and 
the  lien  claimant,  and  involves  not  only  the  fur- 
nishing of  materials  but  their  installation  or  in- 
corporation in  the  building  as  well,  the  question 
of  whether  the  person  between  whom  and  the 
owner  the  contract  is  made,  shall  be  considered 
the  original  contractor  or  material  man,  is  largely 

1  Vice  Chancellor  Stevenson,  2  Beckhard  v.  Rudolph,  68  N. 
in  Beckhard  v.  Rudolph,  68  N.  J.  Eq.  740,  reversing  68  N.  J. 
J.  Eq.  315.  Eq.  315,  supra. 

160 


THE  LIEN  OF  THE  CONTRACTOR  161 

determined  by  the  fact  of  whether  or  not  the  labor 
bestowed  upon  the  materials  in  installing  or  in  in- 
corporating them  in  the  building,  is  comparatively 
insignificant  or  considerable,  in  comparison  with 
the  price  of  the  materials  so  installed.3  Thus, 
services  consisting  of  papering  and  decorating 
rooms  have  been  said  to  be  the  services  of  the 
original  contractor,4  while  one  furnishing  an  elec- 
trical plant 5  or  one  furnishing  a  steam  plant,6  has 
been  considered  a  material  man. 

To  qualify  as  a  contractor  within  the  meaning 
of  the  lien  laws  it  is  not  necessary  that  one  be  the 
holder  of  a  contract  for  the  entire  work  under  way 
or  contemplated;  the  owner  may,  as  is  entirely 
usual,  enter  into  separate  agreements  with  a 
number  of  different  contractors,  covering  differ- 
ent phases  of  the  work.7  Under  the  more  con- 
servative statutes,  and  in  the  earlier  development 
of  the  lien  law,  the  contractor  was  held  to  be  not 
entitled  to  lien  rights,  for  the  reason  that  he  could 
not  be  classed  as  a  material  man ;  but  the  right  of 
the  contractor  to  lien  protection  is  now  very  gen- 
erally recognized,  and  this  in  the  very  jurisdic- 
tions where  previously  a  more  restricted  doctrine 
was  adopted.8 

3  Bennett  v.  Davis,  1 13  Cal.  an  electrical  plant  a  contractor. 

337.  6Hinckley    v.     Fields,     etc., 

*LaGrill  v.  Mallard,  90  Cal.  Co.,  91   Cal.  136. 

373-  7Duff  v.   Hoffmann,  63   Pa. 

oRoebling's     Sons'     Co.     v.  St.   192;   Schenck  v.   Uber,  81 

Humboldt,   etc.,   Co.,    112   Cal.  Pa.  St  31 ;  Pacific  Mutual,  etc., 

288 — compare,  Salem  v.  Lane,  Co.  v.  Fisher,  106  Cal.  224. 

etc.,  Co.,  189  111.  593,  holding  8  Chapman  v.   Faith,   18   Pa. 

one   furnishing  an   engine   for  Super.     Ct.     578;     Lester     v. 


162       LAW  OF  ARCHITECTURE  AND  BUILDING 

§  90.  Various  Statutory  Provisions. — In  the 
case  of  the  contractor,  as  in  the  case  of  the  archi- 
tect, the  special  provisions  of  the  statutes  in  each 
jurisdiction  must  be  considered,  in  determining 
whether  the  services  performed  are  such  as  are 
recognized  as  the  proper  basis  for  a  lien.  In 
Illinois,  work  done  in  ornamenting  a  house  comes 
within  the  statute.9  In  California,  under  an  act 
recognizing  improvements  as  the  basis  of  a  lien, 
papering  and  decorating  have  been  considered  as 
constituting  improvements.10  In  Massachusetts, 
the  installing  of  a  drying  machine  in  a  glue  and 
chemical  manufacturing  plant  has  been  construed 
as  embodying  merely  slight  changes,  incidental  to 
work  on  personal  property,  and  as  not  therefore 
properly  the  basis  of  a  lien.11 

§  91.  Performance  Must  Be  Proven. — It  is  al- 
most self-evident  that  the  contractor,  if  he  is  to 
place  himself  in  a  position  where  he  may  claim  the 
protection  of,  or  advantage  accruing  from,  the 
statutory  lien  accorded  him,  must  perform  his 
contract,  or  show  that  he  has  been  prevented  from 
performing  by  the  acts  of  the  other  party,  or  that 
the  unperformed  provisions  of  the  contract  have 
been  waived.12 

Houston,  101  N.  Carolina,  605 ;  Statute   of   1833   and   refusing 

Bryan  v.  Whitford,  66  111.  33  lien. 

— for   erecting   and   repairing;  9  Drew  v.  Mason,  81  111.  498. 

Powell  v.  Nolan,  27  Washing-  10La   Grille   v.    Mallard,   90 

ton    318;    Haines    v.    Holland  Cal.  373. 

(1898,  Tenn.  Ch.  App.),  48  S.  VL  Curnew  v.  Lee,  143  Mass. 

W.  400;  compare  also  Winder  105. 

v.    Caldwell,    14   How.    U.    S.  12  Woolf  v.  Schaefer,  103  N. 

434,     decided     under     U.     S.  Y.    A.    D.    567,    reversing    41 


THE  LIEN  OF  THE  CONTRACTOR  163 

§  92.  Substantial  Performance  Sufficient — 
Statement  of  the  Rule. — That  performance  of  the 
contract  which  is  considered  as  necessary  under 
this  rule  has  been  construed,  as  between  the  owner 
and  the  principal  contractor  at  least,  to  be  a  sub- 
stantial performance,  and  if  the  contract  has  been 
substantially  performed,  within  the  meaning  of 
that  term  as  interpreted  by  the  courts,  a  lien  may 
be  enforced.13 

The  rule  has  been  well  stated  to  be  that 

"If  there  has  been  no  wilful  departure  from  the  terms 
of  the  contract,  or  omission  in  essential  parts,  and  the 
laborer  has  honestly  and  faithfully  performed  the  con- 
tract in  all  its  material  and  substantial  features,  he  will 
not  be  held  to  have  forfeited  his  right  to  remuneration 
by  reason  of  mere  technical,  inadvertent  and  unimportant 
omissions  or  defects.  The  law  imposes  no  such  liability 
upon  and  exacts  no  such  penalties  of  the  mechanic."  " 

Misc.  N.  Y.  640 ;  Mahon  v.  1S  Ruigle  v.  Wallis  Iron 
Guilfoyle,  18  N.  Y.  Supp.  93;  Works,  149  N.  Y.  439;  D.  A. 
Smith  v.  Ruggiero,  52  A.  D.  Tompkins  Co.  v.  Monticello, 
(N.  Y.)  382;  Trust  Co.  v.  etc.,  Co.,  137  Fed.  625;  Brandt 
Guigues,  76  N.  J.  Eq.  495;  v.  City  of  New  York,  no  N.  Y. 
Smith  v.  Coe,  2  Hilt  (N.  Y.)  A.  D.  396,  affirmed  186  N.  Y. 
365,  affirmed  29  N.  Y.  666 ;  May  599 ;  Felgenhauer  v.  Haas,  123 
v.  Menton,  18  Misc.  (N.  Y.)  A.  D.  (N.  Y.)  75;  Nesbit  v. 
737;  Derr  v.  Kearney,  46  Misc.  Braker,  104  A.  D.  (N.  Y.)  393; 
(N.  Y.)  148 ;  Rochford  v.  Roch-  Sinclair  v.  Tallmadge,  35  Barb, 
ford,  192  Mass.  231;  Pritzlaff,  (N.  Y.)  602;  Moore  v.  Dugan, 
etc.,  Co.  v.  Berghoefer,  103  179  Mass.  153;  Bergfors  v. 
Wis.  359;  Bohem  v.  Seabury,  Caron,  190  Mass.  168;  Burke 
141  Pa.  St.  594;  Morrison  Co.  v.  Coyne,  188  Mass.  401; 
v.  Williams,  200  Mass.  406;  Sherry  v.  Madler,  123  Wis. 
CBurke  v.  Coyne,  188  Mass.  401 ;  621 ;  Kane  v.  Stone  Co.,  39 
Frohlich  v.  Klein,  160  Mich.  Ohio  St  I. 
142 ;  Kane  v.  Stone  Co.,  39  "  Allen  J.  in  Sinclair  v.  Tall- 
Ohio  St.  i;  Malbon  v.  Birney,  madge,  35  Barb.  (N.  Y.)  602, 
II  Wis.  107;  Brydon  v.  Lutes,  at  p.  604.  See  also  on  interpre- 
9  Manitoba  463.  tation  of  substantial  perform- 


164       LAW  OF  ARCHITECTURE  AND  BUILDING 

§  93.  Effect  of  Delay. — A  delay  by  the  con- 
tractor in  carrying  out  the  contract  will  not  pre- 
vent him  from  enforcing  his  lien  rights  where  the 
contract  has  been  carried  out,  although  late;  but 
damages  for  the  delay  will  be  deducted  from  the 
contract  price.15 

§  94.  Limitation  of  Rule. — The  foregoing  rule 
is  subject  to  the  qualification  that  where  time  is 
stipulated  to  be  of  the  essence  of  the  contract,  that 
is  to  say,  a  fundamental  term  of  the  contract,  a 
breach  by  the  contractor  of  this  fundamental  pro- 
vision, by  tardiness  in  the  completion  of  the  work, 
will  prevent  him  enforcing  his  rights  as  a  lienor.16 

§  95.  Necessity  of  Architect's  Approval. — 
Where  it  is  provided,  as  is  so  usually  done,  that 
the  work  of  the  contractor  must  be  approved  in 
due  course  by  the  architect,  and  that  the  certificate 
of  the  architect  must  be  presented  as  a  condition 
precedent  to  payment,  the  contractor  can  enforce 
no  lien  without  either  the  presentation  of  the  re- 
quired certificate,  or  proof  of  a  proper  excuse  for 
not  presenting  it.17  Where  the  plaintiff  does  not 
produce  the  certificate  specified  and  relies  upon 
proof  that  the  certificate  has  been  demanded  and 

ance,  Glacius  v.  Black,  50  N.  Monticello  Co.,  137  Fed.  625. 

Y.  145;  Otis  Elevator  Co.  v.  "  Thomson-Starrett  Co.  v. 

Dusenbury,  47  Misc.  (N.  Y.)  Brooklyn  Hts.  Realty  Co.,  in 

450;  Holl  v.  Long,  34  Misc.  N.  Y.  A.  D.  358;  Nesbit  v. 

(N.  Y.)  i;  Wollreich  v.  Pert-  Braker,  104  N.  Y.  A.  D.  393; 

retch,  4  N.  Y.  Supp.  326.  Highton  v.  Dessau,  139  N.  Y. 

1BBenner  v.  Schmidt,  44  111.  607,  affirming  19  N.  Y.  Sup. 

App.  304.  395;  Bloominton  Hotel  Co.  v. 

18  D.    A.    Tompkins    Co.    v.  Garthwait,  227  111.  613. 


THE  LIEN  OF  THE  CONTRACTOR  165 

its  delivery  by  the  architect  refused,  the  burden  of 
proof  is  upon  the  plaintiff  to  establish  these  facts 
by  a  preponderance  of  evidence  in  his  favor  and 
to  establish  in  the  same  way,  and  as  part  of  his 
case,  the  fact  that  the  certificate  was  unreasonably 
withheld.18 

It  should  be  noted,  also,  that  in  New  York  it 
has  been  held,  where  the  production  of  the  archi- 
tect's certificate  is  made  a  condition  precedent  to 
the  right  of  payment,  not  only  that  there  can  be  no 
recovery  unless  the  certificate  be  produced,  or  a 
good  and  sufficient  excuse  shown  for  its  non-pro- 
duction, but,  in  addition,  that  no  payment  can  be 
enforced  under  these  circumstances  unless  there  be 
an  allegation  in  the  complaint  that  the  certificate 
has  been  secured,  or  facts  set  forth  showing  that 
it  has  been  unreasonably  withheld,  and  unless  the 
pleading  be  sustained  by  proof  upon  the  trial.19 

§  96.  Municipal  Contract — Approval  by  City 
Department  as  Condition  Precedent. — In  the  case 
of  a  municipal  contract  where  it  is  stipulated  that 
the  certificate  of  approval  of  a  department  of  the 
city  is  a  condition  precedent  to  final  payment,  and 
the  claim  is  made  that  the  certificate  has  been  un- 
reasonably withheld  or  refused,  whether  or  not 
such  withholding  or  refusal  has  been  unreason- 
able or  arbitrary  is  a  question  of  fact,  and  should 
be  left  to  the  jury  for  determination.20  In  this 
connection  it  is  perhaps  interesting  to  note  that 

"Nesbit  v.  Braker,  104  N.  throp,  59  A.  D.  (N.  Y.)  192. 

Y.  A.  D.  393.  20  N.  Y.  &  N.  H.  Automatic 

19  Weeks  v.  O'Brien,  141  N.  Sprinkler  Co.  v.  Andrews,  173 

Y.  199;  L'Hommedieu  v.  Win-  N.  Y.  25. 


i66        LAW  OF  ARCHITECTURE  AND  BUILDING 

Section  421  of  the  Greater  New  York  Charter 
provides  among  other  things  that : 

"It  shall  be  the  duty  of  any  borough  president,  or  head 
of  any  department,  having  in  charge  any  work,  within 
five  days  after  the  acceptance  of  such  work,  to  file  with 
the  comptroller  a  final  certificate  of  the  completion  and 
acceptance  thereof,  signed  by  the  chief  engineer  or  head 
of  his  department.  The  filing  of  such  certificate  shall  be 
presumptive  evidence  that  such  work  has  been  completed 
according  to  contract." 

§  97.  Collusion — Effect. — Where  the  withhold- 
ing of  the  certificate  is  the  result  of  collusion 
between  the  architect  and  the  owner,  the  lien  will 
be  enforced.21 

§  98.  Waiver  of  Condition  by  Owner. — Inas- 
much as  the  production  of  the  certificate  is  a  con- 
dition specified  for  the  protection  of  the  owner, 
the  latter  may  waive  the  condition  if  he  choose  to 
do  so.22 

§  99.  Certificate  as  Evidence  of  Performance. 
— The  certificate  of  the  architect  will  support  the 
lien  claim  where  the  contract  specifies  that  the 
certificate  shall  be  conclusive  evidence  of  perform- 
ance, but  this  rule  is  subject  to  the  qualification 
that  it  is  operative  only  in  cases  where  the  certifi- 
cate is  not  only  produced  but  is  unimpeached.  If 
it  be  provided,  for  instance,  that  the  work  to  be 
done  and  materials  to  be  furnished  shall  be  of  a 

21  McDonald  v.  Patterson  &         22  Hartley  v.   Murtha,   5   N. 
Co.,  186  111.  381,  affirming  84      Y.  A.  D.  408. 
111.  Apps.  326. 


THE  LIEN  OF  THE  CONTRACTOR  167 

certain  character  and  quality,  and  subject  to  ac- 
ceptance or  rejection  by  the  architect,  his  accept- 
ance will  not  in  itself  be  sufficient  to  support  the 
lien  claim,  where  it  is  shown  that  the  work  and 
materials  are  not  of  such  character  and  quality  as 
to  comply  substantially  with  the  provisions  of  the 
contract. 

§  100.  Corporations  as  Lienors. — The  mere 
fact  that  the  contractor  claiming  the  lien  is  a  cor- 
poration, will  ordinarily  under  the  lien  statutes 
make  no  difference,  for  the  word  "person"  com- 
monly and  widely  used  in  the  statutes  in  describ- 
ing those  who  are  entitled  to  liens,  has  been 
construed  by  the  courts,  in  the  absence  of  other 
restrictive  language,  to  include  a  corporation.23 
The  New  York  courts  have  held  further  that 
where  a  foreign  corporation  delivers  material 
which  is  used  in  work  in  New  York  a  lien  may  be 
maintained  by  the  corporation  notwithstanding  its 
foreign  origin.24 

§  101.  Effect  of  Fire. — In  the  event  of  the  de- 
struction of  a  building  by  fire  where  it  has  been 
provided  that  payment  shall  be  made  upon  comple- 
tion and  where  the  contract  is  not  separable,  but 
refers  to  the  work  as  a  whole,  a  lien  may  be  main- 
tained, provided  the  contract  contain  a  provision 

28  Gaskell  v.  Beard,  58  Hun.  v.    Rome   Brick   Co.,  98   Ala. 

(N.  Y.)  101 ;  Loudon  v.  Cole-  409;  Pagan  v.  Boyle,  etc.,  Co., 

man,  59  Ga.  653.  65    Texas    324;    Huttig   Bros., 

24  N.  Y.,  etc.,  Terra  Cotta  Co.  etc.,  Co.  v.  Denny  Hotel  Co., 

v.  Williams,  102  N.  Y.  A.  D.  6  Wash.  122. 
I ;  and  to  same  effect  see  Cook 


i68        LAW  OF  ARCHITECTURE  AND  BUILDING 

that  the  risk  of  the  destruction  of  the  building  by 
fire  is  upon  the  owner.25  In  the  absence  of  such  a 
provision  however,  the  lien  will  not  be  en- 
forcible.26 

§  102.  Change  in  Ownership. — Where  a  lien 
has  once  attached,  a  mere  change  in  ownership  in 
the  building  during  the  progress  of  the  work  does 
not  constitute  a  new  commencement  of  building 
operations  and  does  not  affect  the  lien  already 
attached.27 

§  103.  Death  of  Owner. — In  the  event  of  the 
death  of  the  owner,  the  death  operates,  in  some 
jurisdictions,  to  defeat  the  lien  right,28  while  in 
others  the  lien  may  still  be  enforced.29 

§  104.  General  Assignment. — The  right  to  a 
lien  has  been  held  to  be  unaffected  by  an  assign- 
ment for  the  benefit  of  creditors  where  the  assign- 
ment is  subsequent  to  the  filing  of  the  lien ; 30  and 
in  Ohio,  even  where  the  assignment  has  preceded 
the  filing  of  the  lien  the  continuing  validity  of  the 
latter  has  been  recognized.31 

§  105.  Consent  of  the  Owner. — The  facts  al- 
ready noted  under  another  heading 32  in  regard  to 

25  Sontag  v.  Brennan,  75  111.  Appeal,      102      Pa.      St.     218. 
279.  29  Robins  v.  Bunn,  34  N.  J. 

26  Wigton's    Appeal,    28    Pa.  L.  322 ;   Holbrook  v.   Ives,  44 
St   161.  Ohio    St.    516;    Richardson   v. 

27  Pennock     v.     Hooper,     5  Hickman,  32  Ark.  406. 
Rawle    (Pa.)    290;   Gordon  v.  30  Steger    v.    Arctic   Refrig- 
Torrey,  15  N.  J.  Eq.  112.  crating  Co.,  89  Tenn.  453. 

28  Tubridy  v.  Wright,  144  N.  31  Hart  v.  Globe  Iron  Works, 
Y.  519,  affirming  7  Misc.  N.  Y.  37  Ohio  St.  75 — compare,  Noyes 
403;  Crystal  v.  Flannelly,  2  E.  v.  Burton,  29  Barb.  N.  Y.  631. 
D.    Smith    N.   Y.   583 ;    Hoffs  32  See  §  88,  p.  157. 


THE  LIEN  OF  THE  CONTRACTOR  169 

the  necessity  and  effect  of  the  owner's  consent  are 
applicable  also  to  the  lien  of  the  contractor  or  sub- 
contractor, or  other  similar  lienors. 


CHAPTER  IV 
THE  LIEN  OF  THE  SUBCONTRACTOR 

§  1 06.  Nature  of  Lien. — The  natural  effect  of 
the  extension  of  the  lien  doctrine  has  been  to  pro- 
tect the  subcontractor  as  well  as  the  contractor, 
and  in  many  cases  the  subcontractor  has  been 
given  a  direct  or  subordinate  lien  by  statute.1 

§  107.  The  Pennsylvania  Doctrine. — The 
Pennsylvania  courts  especially  have  led  in  the 
movement  to  give  the  subcontractor  a  direct  lien 
on  the  property  irrespective  of  the  rights  of  the 
contractor.2 

§  108.  The  New  York  Doctrine. — In  New 
York  State  the  courts  have  not  adopted  the  idea 
of  a  direct  lien  for  the  subcontractor,  but  have 

1  Pendleburg  v.  Meade,  I  E.  statute)  that  a  lien  in  favor  of 
D.  Smith  N.  Y.  728;  Perry  v.  a  subcontractor  for  labor  is  in- 
Potashinski,  169  Mass.  351 ;  elusive  of  the  labor  of  his 
Merrigan  v.  English,  9  Mon.  employees,  but  not  of  materials 
113;  Ballon  v.  Black,  21  Neb.  furnished  by  him;  Knowlton  v. 
131;  Berger  v.  Turnblad,  98  Ellis,  12  Phil.  (Pa.)  396;  Hut- 
Minn.  163;  Vaughan  v.  Ford,  tig,  etc.,  Co.  v.  Denny  Hotel 
162  Mich.  37;  Green  v.  Wil-  Co.,  6  Washington  122. 
liams,  92  Tenn.  220 ;  Central  2  Linden  Steel  Co.  v.  Rough 
Trust  Co.  v.  Richmond,  etc.,  Run  Manufacturing  Co.,  158 
Co.,  68  Fed.  90;  Crane  Co.  v.  Pa.  St.  238 ;  Willey  v.  Topping, 
Hanley,  etc,  Co.,  53  Mo.  Ap-  146  Pa.  St.  427;  White  v. 
peals  540;  Seaman  v.  Bie-  Miller,  18  Pa.  St.  52;  but  com- 
mann,  108  Wis.  365;  Hatch  v.  pare  Schroeder  v.  Galland,  134 
Fansher,  15  R.  I.  459,  also  hold-  Pa.  St.  277. 
ing  (under  the  Rhode  Island 

170 


THE  LIEN  OF  THE  SUBCONTRACTOR  171 

given  him  a  lien  based  upon  the  doctrine  of,  or 
more  exactly  speaking  in  the  nature  of,  subroga- 
tion, and,  as  a  condition  precedent  to  awarding 
any  lien  to  the  subcontractor,  require  that  the  con- 
tractor himself  shall  be  entitled  to  a  lien,  and  that 
in  any  event  there  shall  be  monies  due  from  the 
owner  to  the  contractor  to  which  the  subcon- 
tractor may  be  subrogated.3 

Under  the  subrogation  doctrine  as  exemplified 
in  the  New  York  cases,  the  owner  is  afforded  a 
protection  which  is  not  given  him  under  the  doc- 
trine of  a  direct  lien  for  the  subcontractor  as  ex- 
emplified in  the  Pennsylvania  cases.  Thus,  under 
the  New  York  doctrine,  where  the  principal  con- 
tractor fails  to  complete,  while  the  right  of  the 
subcontractor  to  his  lien  is  not  affected,  the  extent 
to  which  the  lien  can  be  enforced  is  very  materially 
affected,  in  that,  under  these  circumstances,  the 
New  York  courts  will  allow  the  subcontractor  to 
enforce  his  lien  to  the  extent  merely  of  the  amount 
due  to  the  contractor  from  the  owner  at  the  time 
when  the  lien  is  filed,  or  at  the  time  when  the  sub- 
contractor gives  proper  notice  of  his  claim.4 

Applying  the  New  York  doctrine  to  the  usual 
provision  in  a  building  contract  which  provides 

8  LaPasta  v.  Weil,  20  Misc.  rigan  v.  English,  9  Mon.  113; 

(N.     Y.)     554,     reversing    20  Hunter  v.  Truckee  Lodge,  etc., 

Misc.    (N.   Y.)    10 ;   Kirschner  14  Nev.  24. 
v.    Mahoney,  96   N.   Y.    Supp.          * Foshay  v.  Robinson,  16  N. 

195 ;  and  see,  contrasting  Penn-  Y.  Supp.  817,  affirmed  137  N. 

sylvania     doctrine     of     direct  Y.  134;  and  to  same  effect  see 

lien    and    New   York   doctrine  Wright  v.  Pohls,  83  Wis.  560; 

of  subrogation,  Prince  v.  Neal  compare  N.  J.  Steel,  etc.,  Co.  v. 

Millard  Co.,  124  Ga.  892;  Mer-  Robinson,  33  Misc.  (N.  Y.)  361. 


172        LAW  OF  ARCHITECTURE  AND  BUILDING 

that  payment  shall  be  made  in  installments,  on  ac- 
count of  the  total  amount,  and  that  the  balance  of 
the  stipulated  price  shall  be  paid  upon  completion, 
the  effect  is  to  prevent  the  subcontractor  from  en- 
forcing a  lien  against  the  balance  retained  under 
such  a  provision,  in  the  event  that  the  contractor 
fails  to  complete.5  If  the  owner,  however,  elects 
to  come  in  and  complete  the  work  under  a  con- 
tract provision  allowing  him  so  to  do,  and  does 
this,  shortly  before  an  installment  is  to  fall  due  to 
the  contractor,  a  subcontractor  or  material  man 
may  enforce  a  lien  to  the  extent  of  the  amount  of 
the  installment  so  to  become  due,  less  such  amount 
as  may  be  necessary  to  complete  the  work  to  the 
point  when  the  installment  would  become  due,  less 
also  such  sum  as  may  be  required  to  make  good  de- 
fective work;  and  this  rule  holds  true  despite  the 
fact  that  there  may  be  nothing  due  to  the  con- 
tractor, on  the  completion  of  the  building,  by  rea- 
son of  his  failure  to  complete.6 

§  109.  Failure  of  Contractor  to  Complete. — 
Work  done  by  the  subcontractor  for  the  owner, 
after  the  abandonment  of  the  contract  by  the  con- 
tractor, gives  to  the  subcontractor  the  right  to  a 
lien  for  the  full  amount  of  the  value  of  such  work, 
this  being  a  new  undertaking  as  between  himself 
and  the  owner,  and  entirely  separate  from  the 
work  done  by  him  theretofore  under  his  contract 

5  Kelly   v.   Bloomingdale,   19         8  Foshay  v.  Robinson,  16  N. 
N.  Y.  Supp.  126,  affirmed,  139      Y.  Supp.  817,  affirmed  137  N. 
N.  Y.  343;  Brainard  v.  County      Y.   134. 
of  Kings,  84  Hun.  N.  Y.  290, 
affirmed  155  N.  Y.  538. 


THE  LIEN  OF  THE  SUBCONTRACTOR  173 

with  the  main  contractor.7  If  the  breach  of  the 
contract  is  on  the  part  of  the  owner  as  distin- 
guished from  the  contractor,  and  the  latter's  fail- 
ure to  complete  results  from  such  a  condition,  the 
Hen  of  the  subcontractor  may  be  enforced  to  the 
extent  of  such  part  of  the  contract  price  as  may 
remain  unpaid.8 

§  no.  Rights  of  Subcontractor  as  Affected  by 
Contract. — There  is  a  diversity  of  opinion  among 
the  courts  of  the  different  States  as  to  the  validity 
and  effect  of  a  provision  in  a  building  contract 
providing  that  the  subcontractor  shall  not  acquire 
a  lien,  or  providing  that  the  contractor  may  not, 
without  the  owner's  consent,  sublet  his  contract. 
In  some  jurisdictions  it  has  been  held  that  a  lien, 
being  purely  statutory,  and  provided  solely  by  the 
decree  of  the  Legislature,  cannot  be  interfered 
with  by  the  provisions  of  the  building  contract, 
and  that  the  subcontractor  is  accordingly  entitled 
to  his  lien,  irrespective  of  any  covenant  which  the 
contractor  may  have  made  in  this  connection  with 
the  owner,9  while  in  other  jurisdictions  the  courts 
have  considered  that  the  subcontractor  is  charge- 

7  Delray,  etc.,  Co.  v.  Keohone,  vision  that  the  contractor  may 
132  Mich.  17.  not  sublet  the  contract  and  de- 

8  Person  v.   Stoll,  72   N.   Y.  spite  the  fact  that  the  owner 
A.  D.  141,  affirmed  174  N.  Y.  has   not  given  his  consent  to 
548.  the  making  of  the  contract  be- 

9  Atlantic,  etc.,  Co.  v.  Don-  tween  the  contractor  and  the 
nelly,  59  N.  J.  L.  48;  see  also  subcontractor,    see    Wahlstrom 
Huttig,     etc.,     Co.     v.     Denny  v.    Trulson,    165    Mass.    429; 
Hotel  Co.,  6  Washington  122 ;  Perry  v.  Potashinski,  169  Mass. 
and  that  a  subcontractor  is  en-  351. 

titled  to  his  lien  despite  a  pro- 


174        LAW  OF  ARCHITECTURE  AND  BUILDING 


able  with  notice  of  the  provisions  of  the  building 
contract  and  is,  accordingly,  barred  from  his  lien 
under  such  circumstances.10 

§  in.  Employees  and  Material  Men  of  Sub- 
contractor.— It  was  a  very  general  rule  in  the 
earlier  stages  of  the  development  of  the  lien  law 
that  the  employee  of  a  subcontractor  was  not  en- 
titled to  any  lien  rights.11  The  same  rule  was 
likewise  applied  to  those  furnishing  materials,12 
or  furnishing  labor  to  the  subcontractor.13 

The  stringency  of  these  earlier  decisions  has 
been  largely  modified,  however,  by  statutes  and 
decisions  providing  in  substance  for  liens  in  favor 
of  those  performing  labor  or  furnishing  materials 
for  subcontractors.14 


10  Dersheimer  v.  Maloney, 
143  Pa.  St.  532;  Schroeder  v. 
Galland,  134  Pa.  St.  277;  Sea- 
man v.  Biemann,  108  Wis.  365. 

al  Central  Trust  Co.  v.  Rich- 
mond, etc.,  Co.,  54  Fed.  723; 
Harlan  v.  Rand,  27  Pa.  St.  511 ; 
Culver  v.  Attwood,  170  111. 
432;  Morrison  v.  Whaley,  16 
R.  I.  715;  Farmer  v.  St.  Croix, 
etc.,  Co.,  117  Wis.  76. 

12  Central  Trust  Co.  v.  Rich- 
mond, etc.,  Co.,  54  Fed.  723; 
Wood  v.  Donaldson,  17  Wend. 
(N.  Y.)  550,  affirmed  22  Wend. 
395;  Heroy  v.  Hendricks,  4  E. 
D.  Smith  (N.  Y.)  768;  Carlisle 
v.  Knapp,  51  N.  J.  L.  329;  Duff 
v.  Hoffmann,  63  Pa.  St.  191 ; 
Harbeck  v.  Southwell,  18  Wis. 
418;  Stephens  v.  United  R.  R., 
etc.,  Co.,  29  Ohio  St.  227. 

18  Central  Trust  Co.  v.  Rich- 
mond, etc.,  Co.,  54  Fed.  723; 


Wood  v.  Donaldson,  17  Wend. 
(N.  Y.)  550,  affirmed  22  Wend. 
395 ;  Cairo,  etc.,  Co.  v.  Watson, 
85  HI-  53i;  Vandenberg  v.  P. 
T.  Walton,  etc.,  Co.,  19  Okla, 
169. 

14  Vogel  v.  Luitwieler,  52 
Hun.  (N.  Y.)  184;  Brainard  v. 
County  of  Kings,  84  Hun.  (N. 
Y.)  290,  affirmed  155  N.  Y.  538; 
Garrison  v.  Borio,  61  N.  J.  Eq. 
236,  47  Atl.  1060 ;  Gardner,  etc., 
Co.  v.  N.  Y.  Central,  etc.,  Co., 
72  N.  J.  L.  257;  distinguishing 
Carlisle  v.  Knapp,  51  N.  J.  L. 
329;  Snyder  v.  N.  Y.  Central, 
etc.,  Co.,  72  N.  J.  L.  262;  Smith 
v.  Neubaur,  144  Ind.  95 ;  Bar- 
low Bros.  Co.  v.  Gaffney,  76 
Conn.  107;  Macomber  v.  Bige- 
low,  126  Cal.  9 ;  Pere  Marquette 
R.  Co.  v.  Baertz,  36  Ind.  Apps. 
408. 


THE  LIEN  OF  THE  SUBCONTRACTOR  175 

§  112.  Necessity  and  Effect  of  Filing  or  Re- 
cording Contract. — There  are  statutory  provi- 
sions in  a  number  of  the  States  with  reference  to 
the  filing  or  recording  of  the  contract  between  the 
owner  and  the  contractor,  and  while  discussion  of 
these  might  properly  be  included  under  the  sepa- 
rate discussion  to  be  given  to  the  construction 
contract,  their  effect  on  the  lien  rights  of  the 
parties  is  such  that  it  seems  preferable  that  they 
be  considered  in  the  present  connection. 

In  some  States  these  statutes  have  taken  the 
form  of  providing  that  no  lien  can  be  predicated 
upon  the  contract  unless  the  latter  is  in  writing 
and  recorded ; 15  while  in  others  only  contracts  in 
excess  of  specified  amounts  need  be  so  recorded.16 
In  California  the  rule  has  been  modified,  by  a  de- 
termination that  a  filing  of  a  memorandum  of  the 
contract,  embracing  copies  of  substantially  all 
topics  required  to  be  filed  by  statute,  is  sufficient.17 
In  New  Jersey  a  very  different  situation  is  found 
in  that,  under  the  New  Jersey  Laws,  in  the  event 
that  the  contract  is  in  writing  and  is  filed,  with  the 
specifications,  with  the  clerk  of  the  county  where 
the  work  is  done,  at  or  before  the  time  when  the 
building  is  begun,  the  liability  of  the  owner  is 
thereby  limited  to  the  contractor  only,  and  does 
not  extend  to  those  performing  services  or  labor 

"McClallan    v.    Smith,    II  ie  Smith    v.    Bradbury,    148 

Cush.  (Mass.)  238;  Conner  v.  Cal.  41;   Whitla  v.  Taylor,  6 

Lewis,   16  Me.   268;   laege  v.  La.  Ann.  480. 

Bossieux,    15   Grat    (Va.)    83;  "  Blinn      Lumber      Co.      v. 

compare,  Nolte  v.  His  Credi-  Walker,  129  Cal.  62. 
tors,  6  Mart.  (N.  S.)  La.  168. 


176        LAW  OF  ARCHITECTURE  AND  BUILDING 

or  providing  materials  for  the  contractor.18  It 
should  not  be  understood  from  this  rule,  however, 
that  the  subcontractor  or  material  man  is  helpless 
by  reason  thereof.  It  prevents  him  merely  from 
enforcing  a  lien  under  the  circumstances  noted, 
but  it  does  not  prevent  him  securing  a  very  definite 
degree  of  protection  by  the  filing,  under  the  New 
Jersey  law,  of  what  is  commonly  known  as  a  "Stop 
Notice,"  which  is,  in  substance,  a  notice  to  the 
owner  of  his  claim.  The  effect  of  this  is  to  place 
the  owner  in  a  position  where  the  payment  by  him 
of  additional  monies  to  the  contractor  will  be  at 
his  peril  in  view  of  the  notice  which  he  has  re- 
ceived. As  a  practical  matter  this  course  will 
usually  result  in  the  owner's  refusing  to  pay  to 
the  contractor  such  balance  as  may  be  due  him  and 
withholding  it  from  him,  subject  to  proper  proof 
of  the  claims  of  those  subcontractors  from  whom 
notices  have  been  received. 

Formerly  in  New  Jersey  the  filing  of  specifica- 
tions or  copies  thereof  with  the  contract  was  not 
required  in  every  instance.  It  would  appear, 
however,19  that  this  former  rule  dispensing  with 
the  filing  of  the  specifications  was  limited  largely 
to  those  cases  where  all  the  work  was  to  be  done, 
and  the  materials  furnished,  by  the  contractor, 

18  English  v.  Warren,  65  N.  Budd   v.   Lucky,  28   N.   J.   L. 

J.    Eq.    30;    La    Foucherie    v.  484;  Ayres  v.  Revere,  25  N.  J. 

Knutzen,    58    N.    J.    L.    234;  L.    474;    compare,    Glading    v. 

Freedman  v.  Sandknop,  53  N.  Frick,  88  Pa.  St.  460. 

J.    Eq.    243 ;    Weaver   v.    Atl.,  19  LaFoucherie    v.    Knutzen, 

etc.,  Co.,  57  N.  J.  Eq.  547 ;  Wil-  58  N.  J.  L.  234,  supra. 
lets  v.  Earl,  53  N.  J.  L.  270; 


THE  LIEN  OF  THE  SUBCONTRACTOR  177 

himself  one  of  the  parties  to  the  agreement,  and 
that,  even  formerly,  the  necessity  existed  of  filing 
these  specifications  in  the  event  that  the  contract 
referred  to  the  specifications  for  the  details  of 
the  work  to  be  done,  or  was  itself  so  incomplete 
that  an  examination  of  the  specifications  became 
absolutely  necessary  for  a  proper  understanding 
of  the  arrangements  which  had  been  made.20 
The  filing  of  the  specifications  or  a  duplicate  or 
copy  thereof,  according  to  whether  the  original 
contract  or  a  duplicate  or  copy  thereof  is  filed,  is, 
under  the  present  New  Jersey  statutes,  however, 
mandato'ry  if  the  owner  is  to  be  protected.21 

§  113.  Priority  of  Claims. — In  concluding  the 
present  discussion  of  mechanics'  liens  it  should  be 
again  noted,  and  remembered  always,  that  in 
every  instance  the  only  safe  course  to  follow  is  to 
refer  directly  to  the  statutes  of  the  particular 
State  in  which  it  is  desired  to  enforce  the  lien. 
Only  in  this  way  can  a  definite  and  adequate  un- 
derstanding be  reached  of  what  rule  is  to  be  ap- 
plied under  the  special  circumstances  existing,  and 
only  so  can  the  various  elements  of  the  extent  and 
time  of  accrual  of  the  lien,  the  property  affected 
thereby,  and  the  rights  of  priority  of  respective 
lienors,  be  properly  determined.  Thus,  in  New 
York,  section  thirteen  of  the  lien  law  gives  to 
those  who  have  performed  labor  and  furnished 
materials,  priority  over  the  general  creditors  of 

20  English  v.  Warren,  65  N.         21  English  v.  Warren,  65  N. 
J.  Eq.  30;  Weaver  v.  Atl.  Roof-      J.  Eq.  30,  supra. 
ing  Co.,  57  N.  J.  Eq.  547. 


178       LAW  OF  ARCHITECTURE  AND  BUILDING 

an  insolvent  owner  or  contractor,  and  this  section, 
in  connection  with  sections  twenty-five  and  fifty- 
six  thereof,  provides  for  the  priority  of  day  labor- 
ers over  contractors  and  subcontractors,  irrespec- 
tive of  when  their  liens  are  filed,  and  likewise  of 
a  material  man  over  such  contractors  or  subcon- 
tractors.22 In  New  York,  too,  laborers  and  ma- 
terial men  are  given  priority,  among  themselves, 
according  to  the  date  of  the  filing  of  their  re- 
spective liens. 

The  priority  of  lienors  in  other  jurisdictions 
will  naturally  vary,  to  a  greater  or  less  extent,  in 
accordance  with  the  peculiar  doctrines  or  condi- 
tions which  there  exist,  and  it  will  not  be  amiss  to 
emphasize  again  the  fact  that,  in  all  instances,  the 
decisions  on  the  various  phases  of  the  lien  law  are 
based  upon  the  special  provisions  of  the  particular 
statutes  involved,  and  that  only  by  a  careful  ex- 
amination of  the  statutes  in  force  when  and  where 
a  case  arises  can  the  exact  rights  of  the  parties  be 
properly  weighed  and  determined. 

22  See  Herman  et  al.  v.  City      Proctor,  etc.,  Co.,  62  Misc.  (N. 
of  New  York,  130  N.  Y.  A.  D.      Y.)   129. 
531 ;    Hedden    Const.    Co.    v. 


PART  IV 

THE  ARCHITECT  AND  THE  CON- 
TRACTOR—CONCLUSION 


CHAPTER  I 

THE  ARCHITECT  AND  THE 
CONTRACTOR 

§  114.  Rights  and  Liabilities  in  General. — The 
relations  in  general  of  the  architect  and  the 
contractor,  and  their  mutual  rights  and  liabilities, 
closely  inter-related  as  they  are  with  the  other 
phases  of  the  subject,  have  been  already  con- 
sidered in  some  detail.  It  is  proper  to  note 
again,  however,  that  while  the  architect's  primary 
duty  is  to  the  owner,  his  client,  he  must  never- 
theless, and  especially  in  his  capacity  as  ar- 
bitrator, be  careful  that  his  decisions  and  the 
course  pursued  by  him  are  consistent  with  fair 
dealing  to  the  contractor  as  well.  In  the  matter 
of  the  issuance  of  certificates  he  should  exercise 
special  care,  for  in  this  detail  the  builder  is  pri- 
marily within  the  power  of  the  architect,  under  the 
provisions  of  the  ordinary  building  contract  of 
to-day.  For  an  improper  refusal  by  the  architect 
to  issue  a  certificate,  the  issuance  of  which  is  es- 
sential to  the  proper  protection  and  enforcement 
of  the  rights  of  the  builder,  the  latter  may,  it  has 
been  indicated  by  the  British  courts,  hold  the  ar- 
chitect liable  for  the  damages  sustained  by  reason 
of  his  refusal.1 

i  Ludbrook  v.  Barrett,  46  L.  J.  C.  P.  708. 
181 


182        LAW  OF  ARCHITECTURE  AND  BUILDING 

§  115.  Right  to  Plans. — With  respect  to  the 
plans,  the  builder  is  not  in  a  position  to  make  the 
claim  of  ownership  which  can  be  set  up  by  the 
owner,  but  at  the  same  time,  it  seems  that  there  is 
recognized  a  right  in  the  builder  to  use  and  to  hold 
the  plans  in  his  possession,  during  the  time  that 
the  building  is  in  course  of  erection.  The  courts 
have  gone  so  far,  in  one  jurisdiction  at  least,  as  to 
hold,  under  this  doctrine,  that  the  builder  may 
maintain  an  action  in  trespass  against  the  archi- 
tect, where  the  latter  has  taken  the  plans  from  the 
possession  of  the  builder,  without  his  consent  and 
prior  to  the  completion  of  the  work ;  and  that  the 
taking  of  the  plans  by  the  architect  under  these 
circumstances,  if  done  secretly  and  with  felonious 
intent  to  convert  them  to  the  architect's  own  uses, 
and  to  deprive  the  builder  of  the  use  of  them,  is 
ground  for  a  prosecution  for  larceny.2  It  will  be 
observed  that  in  the  case  last  cited,  the  decision  on 
the  point  of  larceny  is  predicated  on  the  assump- 
tion that  the  plans  are  taken  with  felonious  intent, 
which  element  being  assumed  or  shown  naturally 
leads  to  the  conclusion  reached,  but  the  case  is  in- 
teresting nevertheless  as  illustrative  of  the  fact 
that  care  should  be  exercised  not  to  assume  too 
boldly  an  ownership  of  or  control  over  the  plans, 
under  any  and  all  circumstances. 

*  Lunsford  v.  Dietrich,  86  Ala.  250. 


CHAPTER  II 
CONCLUSION 

§  1 1 6.  Summary  and  Final  Suggestions. — In 
closing,  it  may  be  well  to  draw  attention  by  way  of 
brief  summary  to  some  of  the  more  important 
of  the  points  referred  to  in  the  foregoing  pages, 
and  especially  to  those  points  of  particular  im- 
portance to  the  proper  protection  of  the  architect 
and  to  the  enforcement  of  his  rights. 

If  the  architect  is  to  practice  his  profession,  and 
deal  with  his  clients,  with  a  minimum  of  legal  con- 
troversy or  loss,  he  must,  in  the  first  place,  see  that 
his  contract  with  his  employer  is  as  definite  in  all 
of  its  terms  and  provisions  as  it  is  possible  to  make 
it.  If  his  employment  is  merely  for  the  purpose 
of  preparing  preliminary  drawings,  he  should 
take  care  that  nothing  is  said  from  which  it  can 
be  assumed  that  he  waives  his  right  to  payment 
for  the  work  done ;  and  if  possible  it  should  be  ex- 
pressly understood  that  payment  is  expected.  On 
the  points  of  agency  and  extras,  especially,  the 
contract  and  understanding  should  be  full  and  un- 
equivocal, and  as  to  both  of  these  points  the  archi- 
tect should  exercise  the  greatest  care  in  the  as- 
sumption of  any  authority  not  expressly  and 
clearly  provided  for.  He  should  remember  that 
the  building  contract  is,  as  to  many  of  its  provi- 
sions, drawn  for  the  primary  protection  of  his 

183 


184        LAW  OF  ARCHITECTURE  AND  BUILDING 

client  and  that,  without  the  consent  of  the  client, 
he  may  not  safely  undertake  to  waive,  or  allow 
the  builder  to  believe  that  he  can  waive  or  dis- 
pense with,  any  of  the  stipulations  which  have 
been  made  for  his  client's  benefit,  such  as  those 
requiring  written  authorization  for  extra  work, 
the  proper  completion  of  work  before  a  certificate 
is  issued  therefor,  and  the  presentation  of  the 
certificate  as  a  condition  precedent  to  the  right  to 
enforce  payment. 

Not  only  should  the  architect  make  sure  that  the 
terms  of  the  contract  between  his  client  and  him- 
self are  clearly  understood,  in  order  to  avoid  the 
many  difficulties  which  it  has  been  seen  an  am- 
biguity or  careless  wording  of  the  contract  may 
mean  to  both  of  them,  but  he  should,  in  addition, 
be  careful  to  see  that  the  contract  is  properly  exe- 
cuted and  legally  binding.  This  caution  applies 
particularly  to  those  cases  where  the  client  is  an 
association  or  corporation,  or  one  acting  in  a  rep- 
resentative as  distinguished  from  an  individual 
capacity.  It  of  ttimes  happens  that  a  contract  en- 
tered into  by  or  in  behalf  of  a  corporation  which, 
to  the  ordinary  layman,  would  seem  to  be  unques- 
tionably binding  on  the  corporation,  is,  in  fact,  not 
so  at  all,  for  the  reason  that  some  requisite  ele- 
ment or  formality  well  recognized  in  law,  but  not 
of  such  a  nature  as  to  be  readily  realized  by  the 
architect,  has  been  omitted,  thus  rendering  the 
contract  void  as  against  the  corporation. 

In  dealing  with  corporations,  and  especially 
with  municipal  corporations,  therefore,  the  archi- 


CONCLUSION  185 

tect  should  satisfy  himself  that  all  proper  legal 
formalities  have  been  complied  with,  that  the  con- 
tract has  been  executed  by  the  proper  officer  and 
is  in  the  proper  form,  that  due  authority  has  been 
granted  by  the  directors  or  the  city  department  or 
governing  bodies  of  the  corporation,  as  the  case 
may  be,  wherever  such  authority  is  necessary  to 
render  the  contract  binding  upon  the  client,  and 
that  the  contract  is  in  general,  and  in  all  respects, 
so  drawn  and  so  executed  that  its  validity  will  be 
upheld,  and  its  terms  enforced.  Thus,  also,  in 
dealing  with  trustees  or  executors  or  those  acting 
in  any  representative  capacity,  in  matters  involv- 
ing large  expense  or  compensation  of  real  im- 
portance, it  will  not  be  going  too  far  for  the  archi- 
tect to  secure,  if  possible,  certified  copies  of  Let- 
ters Testamentary  and  similar  documents  and,  in 
the  case  of  corporations,  copies  of  directors'  min- 
utes, of  by-laws  or  of  other  papers  whereby  the 
authority  or  other  elements  upon  which  the  valid- 
ity of  the  contract  depends  may  be  clearly  deter- 
mined. 

The  architect  must  remember,  too,  that  while 
the  law  requires  nothing  unusual  in  the  way  of 
skill  and  attention  in  the  supervision  of  the  work, 
on  the  other  hand,  it  does  require  that  there  shall 
be  present  a  reasonable  degree  of  each ;  and,  as  to 
supervision,  he  should  remember  that  in  order  to 
lay  a  clear  and  proper  basis  for  the  protection  of 
his  rights,  under  the  mechanic's  lien  statutes  in 
the  various  jurisdictions,  he  should,  if  possible, 
see  that  the  element  of  supervision  of  the  work, 


186        LAW  OF  ARCHITECTURE  AND  BUILDING 

even  if  to  a  very  slight  extent,  is  present,  to  com- 
ply with  the  rule  pursuant  to  which  so  many  of 
the  States  have  granted  and  enforced  a  lien, 
where  this  element  has  been  established,  but  re- 
fused relief  where  it  has  been  absent. 

Finally,  in  the  matter  of  plans,  if  it  be  desired 
that  title  thereto  remain  in  the  architect,  care 
should  be  taken  to  see  that  a  specific  stipulation 
to  this  effect  is  included  in  the  contract  or  agree- 
ment between  the  architect  and  the  client. 

It  is  of  equal  importance  that  the  owner  and  the 
builder  be  vigilant  to  insure  that  the  construction 
contract  between  them  be  clearly  understood,  and 
without  any  latent  ambiguity ;  that  any  provisions 
for  liquidated  damages  or  extras,  especially,  be  so 
phrased  and  determined  upon  that  there  can  be 
no  doubt  in  the  mind  of  any  one  of  their  meaning, 
or  of  the  intentions  of  the  parties  to  the  contract ; 
that  neither  of  the  parties  give  to  the  other  any 
cause  for  complaint,  on  the  ground  of  unfair 
treatment  or  collusion  with  the  architect,  or  with 
other  parties ;  and  that  any  provisions  for  arbitra- 
tion in  the  contract  be  so  drawn  that  they  can  not 
be  construed  to  usurp  in  any  way  the  jurisdiction 
or  proper  province  of  the  courts. 

The  builder,  before  he  institutes  any  action 
against  the  owner  for  the  recovery  of  the  contract 
price,  should  be  very  sure  that  he  himself  has  com- 
plied with  all  the  terms  of  the  agreement  between 
them ;  that  he  is  not  estopped  from  recovering  the 
amount  which  he  claims  to  be  due  him  by  a  failure 
to  secure  the  architect's  certificate,  or  to  offer  a 


CONCLUSION  187 

proper  excuse  for  its  non-production ;  and  that  the 
contract  has  been  performed  by  him  in  all  sub- 
stantial particulars,  or,  in  the  event  that  it  has  not 
been  so  performed  by  him,  that  performance  has 
been  waived  or  prevented  by  the  owner.  The 
owner,  on  the  other  hand,  in  withholding  any  pay- 
ment from  the  builder,  or  in  attempting  to  ter- 
minate the  contract  and  complete  the  work,  should 
be  satisfied,  before  he  acts,  that,  as  a  matter  of 
law,  the  work  has  not  been  properly  performed, 
and  that  the  builder  is  legally  in  default;  other- 
wise, by  proceeding  against  the  builder  or  by  ter- 
minating and  completing  the  contract  himself,  he 
may  thereby  incur  a  personal  liability  and  un- 
wittingly prepare  the  way  for  an  action  against 
him  by  the  builder  for  damages. 

There  will  be  very  few  situations  where  atten- 
tion to  most  or  all  of  the  points  noted  cannot  be 
given  at  the  expense  of  a  very  reasonable  degree 
of  attention  and  time,  and  there  can  be  no  question 
that  time  and  attention  so  expended  will  in  the 
prevention  of  misunderstanding,  legal  difficulties, 
disputes  between  the  parties,  and  the  expense  con- 
sequent upon  all  of  these,  repay  the  architect, 
the  owner  and  the  builder  in  ample  measure,  and 
assure  to  them  a  feeling  and  a  certainty  of  defi- 
niteness  and  safety  in  their  mutual  dealings, 
which  would  otherwise  be  lacking  in  a  marked  de- 
gree. 


APPENDICES 


APPENDIX  A 

DECISIONS  FOR  REFERENCE 
READING 

It  is  believed  that  the  original  text  of  the  deci- 
sions in  a  number  of  leading  cases  dealing  gener- 
ally with  the  duties,  rights  and  liabilities  of  the 
architect,  owner  and  contractor,  especially  the 
former,  will  be  found  of  interest. 

The  cases  following  are  cited  in  the  text,  but  a 
reading  of  the  decisions  in  their  original  form  and 
substantial  entirety  will  be  helpful,  as  supplement- 
ing and  emphasizing  the  points  already  made  and 
in  connection  with  which  they  have  been  cited. 

The  decisions  selected  deal  with  the  general 
duties  of  and  relationship  between  the  architect, 
owner  and  builder,  the  degree  of  performance  and 
character  of  work  required  of  the  contractor,  the 
extent  of  the  authority  of  the  architect  as  agent  of 
the  owner,  the  effect  of  provisions  for  superin- 
tendence and  approval  by  the  architect,  the  lia- 
bility of  the  architect  for  damage  resulting  from 
his  negligence,  the  right  of  the  architect  to  com- 
pensation, the  measure  of  his  compensation  and 
his  rights  as  a  lienor. 

COOMBS  v.  BEEDE, 
(89  Me.,  187;  36  Atlantic  Reporter,  104.) 
PETERS,  C.  J. — It  is  not  questioned  that  the  plaintiff, 
a  professional  architect,  was  employed  by  the  defendant  to 

191 


192        LAW  OF  ARCHITECTURE  AND  BUILDING 

prepare  plans  and  specifications  for  a  house  which  the 
defendant  intended  to  have  built  for  himself  in  the  city 
of  Lewiston.  On  the  trial  of  this  action,  brought  by 
the  plaintiff  to  recover  compensation  for  services  ren- 
dered by  him  in  such  employment,  the  defendant  sought 
to  establish  that,  although  certain  services  were  rendered 
by  the  plaintiff,  such  services  were  not  beneficial  to  him, 
for  the  reason  that  they  were  performed  in  a  manner  con- 
trary to  his  express  direction  and  wishes. 

In  an  examination  of  the  merits  of  the  controversy 
between  these  parties,  we  must  bear  in  mind  that  the 
plaintiff  was  not  a  contractor  who  had  entered  into  an 
agreement  to  construct  a  house  for  the  defendant,  but 
was  merely  an  agent  of  the  defendant  to  assist  him  in 
building  one.  The  responsibility  resting  on  an  architect 
is  essentially  the  same  as  that  which  rests  upon  the  law- 
yer to  his  client,  or  upon  the  physician  to  his  patient, 
or  which  rests  upon  any  one  to  another  where  such  per- 
son pretends  to  possess  some  skill  and  ability  in  some 
special  employment,  and  offers  his  services  to  the  public 
on  account  of  his  fitness  to  act  in  the  line  of  business 
for  which  he  may  be  employed.  The  undertaking  of  an 
architect  implies  that  he  possesses  skill  and  ability,  in- 
cluding taste,  sufficient  to  enable  him  to  perform  the  re- 
quired services  at  least  ordinarily  and  reasonably  well ; 
and  that  he  will  exercise  and  apply,  in  the  given  case, 
his  skill  and  ability,  his  judgment  and  taste,  reasonably 
and  without  neglect.  But  the  undertaking  does  not  im- 
ply or  warrant  a  satisfactory  result.  It  will  be  enough 
that  any  failure  shall  not  be  by  the  fault  of  the  archi- 
tect. There  is  no  implied  promise  that  miscalculations 
may  not  occur.  An  error  of  judgment  is  not  necessarily 
evidence  of  a  want  of  skill  or  care,  for  mistakes  and  mis- 
calculations are  incident  to  all  the  business  of  life. 

In  a  case  at  nisi  prius  in  one  of  our  counties,  where 
a  controversy  arose  very  similar  to  the  present,  the  de- 
fendant there  contending  that  the  plans  called  for  a 


DECISIONS  FOR  REFERENCE  READING          193 

too  expensive  house,  and  that  there  had  been  a  departure 
from  the  instructions  given  by  the  employer,  Haskell, 
J.,  gave  a  ruling,  which  we  adopt  as  an  acceptable  state- 
ment of  the  law  here,  as  follows:  "The  plaintiffs  con- 
tinued in  the  execution  of  the  plans.  They  procured  the 
details,  and  perfected  the  entire  set  of  plans.  For  some 
reason  those  plans  were  rejected  by  the  defendants. 
The  plaintiffs  say  that  it  was  because  they  did  not  give 
the  house  sufficient  size  and  capacity  and  arrangement  to 
suit  them,  and  that  they  preferred  an  entirely  different 
house, — a  house  of  different  dimensions  and  different 
architectural  proportions.  The  defendants  say  it  was  be- 
cause they  found  the  plans  impracticable,  and  that  the 
arrangement  of  the  plans  called  for  so  great  an  outlay 
that  it  rendered  it  too  expensive  for  them  to  be  carried 
out  and  adopted ;  and  they  say  that  that  was  on  account 
of  the  mistake  of  the  plaintiffs  in  not  properly  advis- 
ing them  and  in  deceiving  them  as  to  the  practicability  of 
the  plans. 

"Now,  gentlemen,  in  determining  the  rights  of  the 
parties,  it  is  well  to  consider  what  the  legal  duty  of  the 
plaintiffs  was  to  the  defendants.  The  architect  is  skilled 
in  the  art  of  building  houses.  Those  who  employ  him 
have  a  right  to  his  best  judgment,  to  his  skill,  to  his  ad- 
vice, to  consultations  with  him,  and  to  his  absolute  fidel- 
ity and  good  faith,  and,  when  the  archiect  has  contributed 
these  things  to  the  person  who  employs  him,  his  duty  has 
been  fulfilled." 

In  the  case  at  bar  the  defendant,  not  relying  on  any 
charge  against  the  plaintiff  of  fraud  or  negligence,  set 
up  at  the  trial  that  there  was  a  special  promise  that  the 
plans  should  not  call  for  a  house  to  cost  exceeding  $2,500, 
and  contended  that,  inasmuch  as  the  plans  called  for 
a  more  expensive  house  than  that  sum  would  build,  noth- 
ing was  recoverable  for  plaintiff's  services.  And  in  re- 
lation to  such  contention  the  presiding  justice  gave  the 
following  instruction :  "Well,  if  that  is  true, — if  Mr. 


194       LAW  OF  ARCHITECTURE  AND  BUILDING 

Coombs  was  explicitly  told,  in  addition  to  the  other 
things,  that  the  building  he  was  designing  must  not  cost 
over  $2,500;  that  he  was  to  make  plans  and  specifica- 
tions for  a  building  to  cost  not  over  that, — why,  then, 
Mr.  Coombs,  the  plaintiff,  should  have  either  made  plans 
accordingly,  or  frankly  told  Mr.  Beede  that  he  could  not 
do  it,  and  declined  to  do  it.  If  he  undertook  to  make 
plans  with  that  restriction  made  to  him  specifically,  why, 
then,  he  must  do  it  before  he  can  recover  any  pay." 

We  think  this  instruction  was  misleading,  and  with- 
out evidence  upon  which  it  could  be  reasonably  based. 
It  punishes  the  plaintiff  for  what  might  be  merely  an 
honest  mistake  or  miscalculation.  It  leaves  wholly  out 
of  consideration  the  elements  of  care  and  good  faith.- 
It  does  not  even  require  that  the  plaintiff  bound  himself 
to  the  agreement  set  up  by  the  defendant.  The  ruling 
implies  a  guaranty  or  warranty,  when  none  was  testified 
to  or  really  pretended. 

Of  course,  it  would  be  too  much  to  say  that  parties 
could  not  make  such  a  shadowy  contract  as  the  defense 
contends  for,  but  it  would  be  so  strange  and  unusual  a 
thing  to  do,  that  clear  and  convincing  evidence  should  be 
required  to  prove  it.  And  the  testimony  exhibits  none 
such  to  our  minds. 

Skipping  the  testimony  of  the  defendant  as  less  adroit 
and  less  spirited  than  that  of  his  wife,  who  was  much  the 
more  active  of  the  two  in  the  transaction,  we  incorporate 
her  statement  here,  as  follows : 

"Q.  Won't  you  state  to  the  jury  the  conversation  and 
what  took  place  ? 

"A.  They  had  some  talk  about  the  fifteen  hundred 
dollar  cottage  that  they  had  been  talking  about  previously, 
and  conversation  was  general  with  regard  to  the  fifteen 
hundred  dollar  cottage ;  and  something  was  said — I  think 
I  spoke  myself  first — about  putting  on  the  other  story; 
spoke  about  its  being  better  economy.  Mr.  Coombs  said : 
'Yes,  if  we  studied  economy,  it  certainly  was  economy 


DECISIONS  FOR  REFERENCE  READING          195 

to  build  a  double  tenement;'  and  Mr.  Beede  asked  him 
what  it  would  cost  extra  to  put  on  the  other  story,  and 
make  a  double  tenement.  He  said  he  thought  one  thou- 
sand dollars.  Then  Mr.  Beede  said:  'Well,  perhaps 
you  can  tell  Mr.  Coombs  something  about  what  kind  of 
a  house  you  want.'  I  said:  'I  don't  know  what  we 
could  have  for  that  money  as  well  as  he  does.  He  under- 
stands that  better  than  I.  But  one  thing,  Mr.  Coombs, 
I  don't  want  it  to  exceed  the  twenty-five  hundred  dollars, 
and  I  would  rather  you  would  cut  it  down  to  twenty- 
two.  Don't  you  think  you  could?'  He  figured  a  mo- 
ment, and  said  he  hardly  thought  we  could,  including 
the  plumbing,  but  for  twenty-five  hundred  dollars  we 
could  build  a  house  complete.  Mr.  Beede  said  if  he  could 
make  plans  for  a  house  to  be  built,  not  exceeding  twenty- 
five  hundred  dollars,  he  might  go  ahead,  and  Mr.  Coombs 
said  he  would  do  so,  and  he  would  send  me  up  a  sketch 
of  the  ground  floor,  to  show  me  what  I  could  have  for 
size. 

"Q.     Did  he  do  so? 

"A.  He  did.  He  told  me  I  might  change  over  what- 
ever I  pleased.  Something  about  the  sink,  I  believe,  I 
wanted  differently.  I  told  him  that  the  arrangement  of 
the  rooms  was  all  right,  I  guessed. 

"Q.  Now  to  come  to  the  next  conversation  you  had 
with  him. 

"A.  Then,  after  I  carried  that  sketch  down  he  sent 
me  up  a  little  sketch  of  what  the  elevation  would  be, 
and  I  looked  that  over,  and  I  thought  it  was  rather  more 
elaborate  than  what  I  expected  for  twenty-five  hundred 
dollars,  and  talked  with  some  of  my  friends  about  it, 
and  they  seemed  to  think  the  same.  The  piazza.,  I  spoke 
of  that,  and  they  said  they  should  judge  that  piazza 
would  cost  two  hundred  and  fifty  dollars.  I  went  down 
and  talked  with  Mr.  Coombs.  Told  him  that  I  felt  that 
it  was  a  little  extravagant.  He  said  he  guessed  not ;  but 
I  thought  he  felt  as  though  it  would  perhaps  overrun 


196        LAW  OF  ARCHITECTURE  AND  BUILDING 

twenty-five  hundred  dollars,  and  asked  him,  'What  do 
you  think  such  a  house  ought  to  cost  ?'  and  he  said,  'Well, 
possibly  three  thousand  dollars.'  I  said,  'We  can't  do 
that;  we  want  a  twenty-five  hundred  dollar  house  and 
must  cut  this  down/  and  he  said,  'You  don't  want  to 
spoil  your  house  for  a  few  hundred  dollars.'  I  said, 
'We  are  willing  to  have  it  a  little  plainer,  rather  than  put 
in  more  money.'  He  said,  'Well,  just  as  you  say.  I 
will  cut  that  piazza  down,  make  less  posts,  take  off  the 
fancy  work  around  the  rail,  and  so  forth,  and  cut  it  down.' 
And  he  did  so  on  the  final  sketches." 

By  this  statement  it  does  not  appear  that  the  plaintiff 
was  to  prepare  plans  for  any  particular  kind  of  house 
to  cost  $2,500,  excepting  that  it  was  to  be  a  two-tene- 
ment house,  with  one  tenement  over  the  other.  Could 
not  the  plaintiff  have  planned  a  house  answering  this 
description  which  would  not  have  cost  that  sum,  or  even 
half  that  sum,  if  allowed  to  do  so?  But  the  difficulty 
was  that  the  defendant's  wife  not  only  wanted  the  ex- 
penditure not  to  exceed  $2,500,  but  she  wanted,  at  the 
same  time,  a  house  worth  much  more  than  that  sum, 
and  the  architect  was  trying  in  good  faith  to  accomplish 
the  desired  result  as  best  he  could.  After  the  plaintiff 
had  engaged  to  make  the  plans,  and  not  before,  the  de- 
fendant calls  on  his  wife,  according  to  her  testimony, 
to  inform  the  plaintiff  what  kind  of  a  house  she  wanted. 
Was  it  expected  that  he  had  promised  to  secure  to  her 
a  house  to  her  liking  for  $2,500,  irrespective  of  actual 
cost  or  worth,  and  that  he  was  agreeing  to  expend  his 
services  gratuitously  if  he  did  not  succeed  in  doing  so? 
We  see  nothing  even  in  the  defendant's  side  of  the  case 
justifying  such  a  position.  The  plaintiff  certainly  could 
have  reduced  the  cost  upon  the  plans,  and  have  earned  his 
compensation,  if  the  wife  had  permitted  him  to  do  so. 

The  plaintiff  gives  a  different  version  of  the  transac- 
tion, denying  that  any  particular  limit  was  fixed  within 
which  he  was  required  to  bring  the  cost  of  the  house, 


DECISIONS  FOR  REFERENCE  READING          197 

other  than  that  the  wife  desired  to  get  as  much  of  a 
house  as  she  could  for  as  small  a  price  as  possible,  and 
he  did  all  he  could  to  assist  her  in  her  ideas.  We  have 
no  doubt  ourselves  that  there  were  talks  about  $2,500, 
as  a  proximate,  but  not  conclusive,  price,  and  that  there 
were  no  rigorous  or  unalterable  instructions  or  conditions 
about  it.  The  plaintiff  says  that,  after  the  plans  were 
first  completed,  the  wife  required  expensive  alterations  to 
be  made  in  them,  and,  while  she  does  not  deny  the  fact, 
she  is  not  willing  to  admit  that  she  remembers  it. 

The  bids  which  came  in  after  the  plans  were  adver- 
tised were  disappointing,  there  being  but  four  in  all,  and 
ranging  in  amount  from  $3,300  to  $4,400,  showing  the 
moral  impossibility  of  an  architect  being  able  to  fix  pre- 
cisely the  cost  of  any  building  if  the  cost  is  to  be  meas- 
ured in  any  such  capricious  way  as  by  the  bids  of  con- 
tractors. It  was  at  an  unfavorable  time  of  the  year, 
when  the  contractors  had  on  hand  all  the  work  they  could 
do,  and  still  the  plaintiff,  by  his  perseverance,  virtually 
obtained  afterwards  a  bid  for  $3,100,  which  the  defend- 
ant refused  to  accept,  nor  would  he  or  his  wife  consent  to 
cut  down  the  plans  so  as  to  obtain  a  bid  within  the  price 
desired ;  and  so  the  plaintiff  advised  the  wife  to  postpone 
the  matter  until  spring,  when  the  conditions  would  be 
more  favorable,  and  she  frankly  accepted  the  advice. 

There  was,  however,  no  waiting  till  spring  before  the 
defendant  had  his  house  built.  He  says  he  was  informed 
by  several  persons  that  he  would  not  be  obliged  to  pay 
for  the  plans  unless  he  used  them,  and  he  concluded  to 
buy  his  materials  and  hire  the  labor  by  the  day.  His 
wife  had  become  sufficiently  posted,  by  her  experience 
with  the  plaintiff  and  remembrance  of  his  work,  to  enable 
her  to  make  sketches  of  what  she  wanted,  and  so  she, 
with  the  assistance  of  the  carpenter  in  her  service,  acted 
as  architect  herself ;  and  the  defendant,  during  the  same 
fall  and  winter,  erected  a  house  and  stable  on  their  lot 
at  a  cost  of  over  $3,500.  The  wife  says  that  the  house 


ig8        LAW  OF  ARCHITECTURE  AND  BUILDING 

built  by  her  "was  brought  to  the  same  degree  of  comple- 
tion that  a  house  would  have  been  by  his  (plaintiff's) 
specifications  for  little  less  than  $2,700."  So  that  plain- 
tiff's calculations,  tested  by  actual  cost  instead  of  by  con- 
tractor's bids,  were  less  than  $200  of  variance  from  the 
standard  which  the  defendant  and  his  wife  pretend  was 
prescribed  for  him  by  them. 

We  can  perceive  no  ground  upon  which,  as  the  testi- 
mony stands,  the  verdict  could  have  been  rightfully  ren- 
dered. Even  if  the  defendant's  version  of  the  facts  be 
true,  then  the  undertaking  of  the  plaintiff  was  to  make 
plans  for  a  house  to  cost  $2,500,  and  no  more;  and  if, 
acting  in  good  faith,  he  exercised  his  skill  and  ability  in 
an  endeavor  to  bring  about  that  result,  that  is  all  that 
could  be  expected  or  required  of  him;  and  no  defense 
is  established  against  his  claim  even  if  he  failed  in  his 
attempt.  But  if  the  house  designed  by  him  could  be 
built  for  less  than  $2,700,  it  could  hardly  be  called  a 
failure,  especially  in  view  of  the  interferences  on  the 
part  of  the  defendant's  wife ;  nor  a  failure  if  the  plaintiff 
could  have  so  altered  his  plans  as  to  reduce  the  house  in 
price,  and  it  seems  to  us  preposterous  to  say  that  he  could 
not ;  and  he  was  willing  to  make  alterations,  and  the  de- 
fendant or  his  wife  would  not  consent  thereto. 

Motion  sustained. 


GLACIUS  v.  BLACK, 
(50  N.  Y.  145.) 

CHURCH,  Ch.  J. — 147:  This  is  an  action  upon  a 
claim  filed  under  the  mechanic's  lien  law.  The  contrac- 
tors are  builders,  and  contracted  to  make  certain  altera- 
tions and  repairs  upon  the  defendant's  house  for  $1,326; 
one-half  to  be  paid  when  the  lath  were  on,  and  the  bal- 
ance when  the  work  was  done  completely  and  accepted. 
The  work  consisted  principally  of  taking  off  an  old  peak 
roof  and  substituting  a  French  or  Mansard  roof  and  fin- 


DECISIONS  FOR  REFERENCE  READING          199 

ishing  off  the  upper  story,  and  making  other  repairs  in 
the  interior  of  the  house.  The  case  was  tried  before  a 
referee,  and  is  very  voluminous.  .  .  .  The  referee  found 
for  the  plaintiffs  the  whole  amount  of  the  claim,  less 
twenty-five  dollars,  which  he  found  as  damages  for  de- 
fective work  and  materials. 

The  findings  of  fact,  if  supported  by  any  evidence,  are 
conclusive  upon  this  Court,  and  we  can  only  deal  with 
the  legal  questions  involved.  A  reference  to  some  gen- 
eral principles  of  law  will  aid  in  elucidating  the  con- 
trolling points  in  the  case.  It  is  well  settled  in  this  State 
that  where  a  party  has  entered  into  a  contract  to  per- 
form work  and  furnish  materials  of  a  specified  character, 
and  the  other  party  agrees  to  pay  for  the  same  upon  the 
performance  of  the  contract,  although  the  work  may  be 
performed  and  materials  furnished,  yet,  if  not  done  in 
the  manner  stipulated,  no  action  will  lie  for  compensa- 
tion. When  performance  is  a  condition  of  payment  the 
former  must  be  shown  to  entitle  a  party  to  recover  un- 
less it  has  been  waived  or  released.  The  case  of  Smith 
v.  Brady  (17  N.  Y.,  173),  reviewing  the  principal  au- 
thorities on  the  subject,  is  full  and  explicit  on  this  point. 
This  is  a  general  rule,  applying  to  contracts  of  this  char- 
acter as  well  as  others.  As  was  said  in  the  above  case, 
"There  is,  in  a  just  view  of  the  question,  no  hardship 
in  requiring  builders  to  perform  their  contracts  in  order 
to  entitle  themselves  to  payment  where  the  employer  has 
agreed  to  pay  only  on  that  condition."  As,  however,  this 
class  of  contracts  embrace  many  particulars  which  it  is 
difficult,  if  not  impracticable,  to  comply  with,  with  en- 
tire exactness,  the  apparent  rigor  of  the  general  rule  has 
been  so  far  relaxed  as  that  a  substantial  compliance  will 
be  deemed  sufficient.  As  was  properly  expressed  by 
Allen,  J.,  in  Sinclair  v.  Talmadge  (35  Barb.,  602),  "If 
there  has  been  no  willful  departure  from  the  terms  of 
the  contract,  or  omission  in  essential  points,  and  the  la- 
borer has  honestly  and  faithfully  performed  the  contract 


200        LAW  OF  ARCHITECTURE  AND  BUILDING 

in  all  its  material  and  substantial  particulars,  he  will  not 
be  held  to  have  forfeited  his  right  to  remuneration  by 
reason  of  mere  technical,  inadvertent  or  unimportant 
omissions  or  defects.  The  law  imposes  no  such  liability, 
and  enforces  no  such  penalty."  The  question  in  each  case 
will,  of  course,  be  an  open  one,  where  defects  exist, 
whether  they  are  substantial  or  technical  and  unimpor- 
tant. This  is  a  question  of  fact.  The  referee  has  found 
that  defects  existed,  but  has  not  passed  upon  the  question 
whether  they  were  substantial  so  as  to  defeat  any  right 
of  action,  or  so  trivial  and  unimportant  as  to  require  the 
application  of  the  modified  rule  before  stated;  nor  has 
he  furnished  any  guide  by  which  we  can,  as  a  question  of 
law,  determine  that  question,  except  that  he  finds  that  the 
plaintiffs  intended  in  good  faith  to  perform  their  con- 
tract. The  referee  finds,  in  the  fiftieth  clause  of  what  are 
called  special  findings,  "That  the  work  was  never  com- 
pleted by  the  claimants  according  to  the  plans  and  speci- 
fications in  the  respects  found  by  me  in  my  report,  or 
specially  found  by  me  herein." 

The  defects  thus  found  are  quite  numerous,  and  em- 
brace defects  in  materials  and  workmanship,  in  the  plaster- 
ing, the  walls  were  out  of  plumb,  the  windows  were  too 
narrow,  an  omission  to  put  sills  under  cross  partitions ; 
there  was  some  leakage;  folding  doors  were  too  narrow 
and  too  short ;  an  omission  to  replace  lightning-rods,  torn 
down  to  perform  the  work;  defective  materials  and 
workmanship  in  the  mouldings  and  casings,  and  some 
other  similar  defects.  As  to  some  of  the  defects,  the 
referee  found  that  they  had  been  waived,  or  should  have 
been  objected  to  while  the  work  was  progressing;  as  to 
others,  that  there  was  no  evidence  of  damages  by  rea- 
son of  them ;  and,  as  to  others,  he  allowed  compensation 
in  damages,  but  did  not  find  whether  they  were  of  such 
a  material  character  as  to  preclude  a  recovery  or  not; 
nor,  upon  the  theory  upon  which  he  determined  the  case, 


DECISIONS  FOR  REFERENCE  READING          aoi 

was  it  essential  that  he  should  do  so.  That  theory  was 
that,  by  the  terms  of  the  contract,  the  architect  had  power 
to  bind  both  parties  by  his  acceptance  of  the  work  and 
materials  so  far  as  to  enable  the  plaintiffs  to  maintain 
an  action,  that  the  architect  superintended  the  work  and 
accepted  it  after  it  was  completed,  and  that  the  defendant 
was  bound  thereby  to  pay  for  it,  less  the  value  of  the  de- 
fects proved. 

After  an  examination  of  the  case,  I  do  not  think  this 
proposition  can  be  sustained.  In  the  first  place  the  con- 
tract confers  no  power  upon  the  architect  to  change  or 
alter  the  plans  and  specifications ;  nor  is  there  any  pro- 
vision, found  in  many  such  contracts,  that  the  decision 
of  the  architect  shall  be  final  and  conclusive  upon  the  de- 
fendant. The  contract  provides  "that  the  materials  to 
be  furnished  shall  be  of  the  best  quality,  and  the  work- 
manship performed  in  the  best  manner,  subject  to  the 
acceptance  or  rejection  of  Edward  Wall,  architect,  and 
all  to  be  in  strict  accordance  with  the  plans  and  specifi- 
cations, which  are  signed  by  the  parties  of  the  second  part, 
and  form  part  of  this  contract."  The  architect  also  had 
power  to  reject  any  particular  work  or  materials;  and 
in  such  case  the  builders  were  to  remedy  the  defects. 
This  is  all  the  authority  which  the  architect  had  under 
this  contract,  and  his  authority  was  equally  known  to 
both  parties.  It  is  quite  clear  to  my  mind  that  the  ac- 
ceptance of  the  work  by  the  architect  did  not  relieve  the 
plaintiffs  from  their  agreement  to  perform  this  work  ac- 
cording to  the  plans  and  specifications.  The  provisions 
are  distinct  and  independent.  The  contract  was  to  be  per- 
formed in  a  certain  manner,  particularly  specified  in  writ- 
ing; and,  in  addition,  it  was  to  be  subject  to  the  accept- 
ance or  rejection  of  the  architect ;  but  his  acceptance  of 
a  different  class  of  work  or  inferior  materials  from  that 
contracted  for  would  not  bind  the  defendant  to  pay  for 
them.  She  was  obliged  to  pay  only  where  "the  work  was 


202        LAW  OF  ARCHITECTURE  AND  BUILDING 

done  completely  and  accepted."  The  provision  for  ac- 
ceptance was  an  additional  safeguard  against  defects  not 
discernible  by  an  unskilled  person. 

This  principle  was  substantially  held  in  Bird  v.  Smith 
(64  E.  C.  L.  R.,  785),  where  the  contract  was  for  the 
sale  and  delivery  to  the  plaintiff  of  a  quantity  of  iron 
rails  of  certain  weights,  shapes  and  dimensions,  and  to 
be  inspected  and  certified  as  then  agreed  upon,  and  in 
quality  equal  to  any  rails  made  in  Staffordshire.  A  plea 
that  the  rails  were  inspected,  certified  and  approved  by 
an  agent  of  the  plaintiff's,  as  provided  in  the  contract, 
was  held  bad  on  demurrer  on  the  ground  (among  others) 
that  "each  stipulation  is,  in  its  terms,  distinct,  and,  in  its 
nature,  as  an  absolute  warranty  for  quality,  may  well  be 
required,  in  addition  to  a  provision  for  inspection  and  ap- 
proval, to  guard  against  defects  which  inspection  cannot 
discover." 

In  Wyckoff  v,  Meyers  (44  N.  Y.,  143),  where  it  was 
held  that  the  certificate  of  the  architect  was  conclusive 
upon  both  parties,  the  contract  provided  that  payment 
should  be  made  upon  the  certificate  of  the  architect ;  and 
it  was  also  provided  that  disputes  respecting  the  construc- 
tion and  meaning  of  the  drawings  and  specifications 
should  be  submitted  to  the  architects,  whose  decision 
should  be  conclusive  upon  the  parties.  Every  contract 
must  be  construed  by  its  own  terms,  and,  I  think,  the 
true  construction  of  this  contract  is,  that  the  provision 
subjecting  the  work  and  materials  to  the  acceptance  of 
Mr.  Wall  was  for  the  benefit  of  the  defendant  as  an  ad- 
ditional protection  to  the  agreement,  on  the  part  of  the 
builders,  to  perform  the  work  according  to  the  plans  and 
specifications,  and  such  seems  to  have  been  the  under- 
standing of  both  parties  by  the  course  of  evidence  on  the 
trial.  The  acceptance  by  the  architect  would  be  impor- 
tant in  establishing  that  the  work  and  materials  were  in 
compliance  with  the  contract,  but  would  not  be  sufficient 


DECISIONS  FOR  REFERENCE  READING         203 

to  sustain  a  recovery  if  it  appeared  that  the  contract  had 
not  been  substantially  performed. 

We  cannot  determine  whether  this  construction  of  the 
contract  would  have  changed  the  result  at  the  trial  be- 
fore the  referee  or  not,  because  the  referee  did  not  con- 
sider or  pass  upon  the  question  of  substantial  perform- 
ance, but  held  that  such  performance  was  established  by 
the  acceptance  of  the  architect,  so  far  as  to  enable  the 
plaintiff  to  maintain  the  action.  In  this  he  erred.  But 
I  cannot  agree  that  there  was  such  acceptance  of  the 
work  by  the  architect  as  to  bind  the  defendant,  even  if 
he  had  authority  to  bind  her.  The  facts,  upon  which  the 
referee  found  that  the  architect  accepted  the  work,  are 
stated  in  the  report,  and  are  embraced  in  numerous  speci- 
fications; but  so  far  as  material  are,  substantially,  that 
the  architect  did  not  see  the  work  during  the  taking  down 
of  the  old  roof,  erecting  the  studding  and  putting  up  the 
new  roof,  nor  the  partitions  of  the  attic  floor,  or  before 
the  lath  and  plastering  were  on,  and  that  he  only  saw 
the  work,  on  an  average,  about  once  a  week ;  that  about 
the  time  the  work  was  finished  he  and  one  of  the  claimants 
went  over  a  portion  of  the  work  together  in  the  absence 
of  the  owner,  but  did  not  thoroughly  examine  the  work ; 
that  he  pointed  out  certain  things  to  be  done,  and  on  the 
next  day  the  other  claimant  went  to  the  house  to  do  the 
things  which  his  co-claimant  stated  that  the  architect 
pointed  out,  but  did  not  do  all  of  them ;  that  a  day  or  two 
afterward,  the  architect  not  having  seen  the  work  mean- 
time, met  one  of  the  claimants  in  the  street  and  asked 
him  if  the  things  he  had  specified  had  been  done;  that 
the  claimant  replied  that  they  had,  and  asked  for  a  cer- 
tificate, which  the  architect  promised  to  give  in  a  few 
days,  after  he  had  been  over  to  see  the  work ;  "that  after- 
ward the  claimants  called  again  upon  the  architect  at  his 
home  for  the  certificate,  and  that  he  told  them  that  he 
had  not  seen  the  work  yet  and  promised  to  leave  a  cer- 


204        LAW  OF  ARCHITECTURE  AND  BUILDING 

tificate  at  the  claimants'  house  in  a  few  days  after  he 
had  been  over  to  see  the  work,  and  at  the  same  time  ad- 
vised the  claimants  to  go  and  compromise  with  the  owner, 
and  if  they  could  not  make  it  out  (the  settlement)  he 
would  give  the  certificate  anyway;"  that  the  architect 
did  not  know  of  the  objections  of  the  owner  to  the  work, 
and  on  making  a  thorough  examination  he  was  of  opinion 
that  the  work  was  inferior  in  quality  and  in  workman- 
ship and  did  not  comply  with  the  contract  in  all  respects, 
and  never  gave  the  certificate  or  otherwise  accepted  the 
work. 

Conceding  the  power  claimed  for  the  architect,  these 
facts  fail  to  establish  such  an  acceptance  as  would  fore- 
close the  defendant.  At  most,  it  was  only  a  promise  to 
accept,  and  that,  too,  in  substance  after  a  subsequent  sat- 
isfactory examination  of  the  work.  The  work  was  not 
satisfactory  when  the  examination  was  subsequently 
made.  But  if  the  acceptance  had  been  unqualified  and 
a  certificate  given  without  knowing  the  facts  concerning 
which  a  subsequent  examination  showed  he  was  mistaken, 
the  acceptance  and  certificate  would  have  had  no  binding 
force.  Fraud  or  mistake  vitiates  the  certificate  in  those 
cases  where  a  certificate  is  otherwise  conclusive.  (44 
N.  Y.,  supra.)  So  that,  in  any  point  of  view,  the  referee 
erred  in  holding  that  the  defendant  was  in  any  degree 
prejudiced  in  her  defense  by  what  was  said  or  done  by 
the  architect  upon  the  subject  of  the  acceptance  of  the 
work.  There  are  other  conclusions  stated  in  the  numer- 
ous findings  of  the  referee  to  which  I  can  not  fully  as- 
sent, but  which  are  comparatively  subordinate,  and  as 
there  must  be  a  new  trial  I  do  not  deem  it  material  to 
examine  them.  It  is  not  intended,  in  the  views  above  ex- 
pressed, to  decide  or  intimate  an  opinion  that  the  claim- 
ants are  not  entitled  to  maintain  this  action  and  recover 
the  contract  price,  less  such  reasonable  damages  as  the 
defendant  has  sustained  by  reason  of  the  defects  and 
omissions  appearing  in  the  work  or  materials.  If  the 


DECISIONS  FOR  REFERENCE  READING          205 

claimants  acted  in  good  faith,  and  honestly  performed  the 
contract  in  all  substantial  particulars,  they  should  not  be 
compelled  to  forfeit  the  whole  payment  by  reason  of  in- 
advertent or  slight  defects.  So,  too,  the  plaintiffs  may 
recover  if  the  defendant,  by  herself  or  authorized  agent, 
has  waived  full  performance,  or  consented  to  accept  the 
work  subject  to  deductions  for  defects.  On  the  other 
hand,  if  these  defects  and  omissions  are  so  numerous  and 
pervading  as  to  show  that  the  whole  job  was  done  in  a 
slovenly  and  improper  manner,  not  conforming  substan- 
tially with  the  plans  and  specifications,  and  there  has  been 
no  waiver,  there  is  no  rule  of  law  or  morality  which 
entitled  the  claimant  to  compensation.  From  the  nature 
of  the  case  it  cannot  be  difficult  to  reach  a  just  result  at 
another  trial,  or  even  by  a  proper  spirit  of  accommoda- 
tion on  the  part  of  the  parties  themselves  to  arrive  at 
such  a  result,  without  further  litigation  or  expense. 

The  point  is  made  by  the  appellant  that  the  judgment 
should  be  reversed  without  a  new  trial,  claiming  that 
the  lien  has  expired,  and  no  personal  judgment  can  be 
rendered  against  the  defendant.  This  position  is  not  ten- 
able. If  the  lien  has  expired  the  action  can  still  be  pros- 
ecuted as  a  personal  action.  The  twentieth  section,  as 
amended  in  1871,  is  explicit  in  retaining  the  lien,  but  it  is 
unnecessary  to  determine  now  whether  the  lien  continues 
or  not. 

Judgment  reversed  and  new  trial  granted,  costs  to 
abide  the  event. 

All  concur,  except  GROVER,  J.,  not  voting. 

Judgment  reversed. 

GILMORE  v.  STEVENS, 
(54  How.  Pr.  (N.Y.),  197.) 

Trial  Term,  March,  1877. 

Arthur  Gilman,  an  architect,  sues  Mrs.  Marietta  R. 
Stevens,  the  defendant,  for  a  balance  of  $832  upon  an 


206        LAW  OF  ARCHITECTURE  AND  BUILDING 

account  for  professional  services  in  completing  and 
building  an  addition  to  the  Stevens  apartment  house, 
corner  of  Twenty-seventh  Street  and  Fifth  Avenue,  New 
York  City,  the  other  portion  of  said  apartment  house 
having  been  constructed  by  another  architect,  Mr.  R.  M. 
Hunt.  The  complaint  likewise  claimed  full  compensa- 
tion as  upon  an  estimated  cost  of  $425,000,  according  to 
the  schedule  of  the  Institute  of  Architects,  for  profes- 
sional services  in  and  about  a  hotel  proposed  to  be  built 
by  the  defendant  (as  alleged)  upon  land  belonging  to  the 
late  Paran  Stevens,  the  defendant's  husband,  at  the  cor- 
ner of  Thirty-seventh  Street  and  Fifth  Avenue,  New 
York  City,  which  last  hotel  was  never  built.  The  an- 
swer is  a  general  denial,  and  alleges  for  a  further  de- 
fense, and  as  well  by  way  of  counter-claim,  that  the 
plaintiff  in  his  professional  capacity  as  an  architect  under- 
took and  agreed  to  supervise  the  construction  of  the 
Twenty-seventh  street  house,  and  to  see  that  the  same 
was  built  of  the  best  of  material,  and  in  a  strong  and  sub- 
stantial manner,  and  made  suitable  for  its  purpose,  while 
in  fact  and  in  consequence  of  "negligence,  and  want  of 
skill  and  attention"  on  the  part  of  the  plaintiff  the  said 
building  was  not  constructed  in  a  strong  and  substan- 
tial manner.  "Everything  necessary  to  make  the  same 
strong  and  substantial  was  not  done."  "The  materials 
used  in  and  about  the  construction  of  the  same  were  not 
of  the  best  character,  and  the  work  and  labor  upon  the 
same  were  not  faithfully  performed,  and  that  in  conse- 
quence thereof  the  said  building  is  less  in  value  by  the 
sum  of  $20,000  and  upwards  than  it  should  be  if  the 
plaintiff  had  performed  his  agreement  and  discharged 
his  duty  in  the  premises,  by  reason  whereof,  as  the  de- 
fendant is  advised  and  believes,  the  plaintiff  is  liable  to 
her  in  the  sum  of  $20,000  and  upwards,  for  which,  by 
way  of  counter-claim,  she  asks  judgment  against  him  in 
this  action,  with  interest." 

The  defendant's  testimony  was  to  the  effect  that  she 


DECISIONS  FOR  REFERENCE  READING         207 

merely  considered  a  proposal  to  build  a  hotel  at  Thirty- 
seventh  Street  and  never  decided  so  to  do,  nor  employed 
plaintiff  to  design  such  an  hotel,  and  that  the  plaintiff's 
plans,  if  he  made  any  such,  were  an  adaptation  of  plans 
already  made  by  plaintiff  for  another  person,  and  that 
she  estimated  her  damage  from  the  ill  construction  of  the 
Twenty-seventh  Street  house  at  $20,000.  With  refer- 
ence to  the  Twenty-seventh  Street  house  the  defendant's 
son-in-law  testified  that  certain  arches  over  the  store  win- 
dows in  the  first  floor  were  weak  so  that  he  saw  the  bricks 
bulging  out  above  them. 

No  architect  was  called  by  the  defendant,  but  two 
builders  testified  in  her  behalf  that,  in  their  opinion,  the 
material  used  was  not  of  the  best  quality  and  the  work 
was  inferior,  and  that  the  value  of  the  building  was  very 
much  less  on  account  of  those  facts.  On  the  part  of  the 
plaintiff  five  builders  testified  to  their  having  made  offers 
to  put  the  building  in  good  condition  for  comparatively 
small  sums  ranging  from  $1,000  to  $2,000,  and  that  the 
need  of  repairs  was  largely  due  to  the  fact  that  the 
building  was  erected  in  winter  and  without  the  heat  which 
defendant  had  agreed  to  furnish,  and  that  such  repairs 
were  usually  required,  and  various  architects  were  called 
to  prove  the  plaintiff's  experience  and  professional  stand- 
ing. The  specifications  were  put  in  as  tending  to  show 
that  first-class  work  and  material  were  not  contracted  for 
on  the  Twenty-seventh  Street  house,  as  the  specifications 
called  in  some  places  for  "2d  quality  pine"  and  for  "two 
coat  work  in  plastering."  The  plaintiff  testified  that  the 
defendant  ordered  and  insisted  upon  repeated  changes 
from  his  plans  and  directions,  and  failed  to  make  the  pay- 
ments agreed  on  and  needed  to  carry  on  the  work.  As 
to  the  denial  of  employment  upon  the  Thirty-seventh 
Street  hotel  letters  of  the  defendant  were  put  in  evidence 
in  one  of  which  she  urged  the  plaintiff  to  hasten  those 
plans,  and  in  another  of  which  suggested  to  the  pro- 
posed builder  of  the  last  hotel  to  "excavate  under"  a 


208        LAW  OF  ARCHITECTURE  AND  BUILDING 

florist  who  was  occupying  the  Thirty-seventh  Street  land 
and  "tumble  him  in"  if  he  did  not  get  out  of  his  (the 
builder's)  way.  The  court  allowed  evidence  as  under  the 
before-mentioned  allegations  of  the  answer  as  to  certain 
payments  (referred  to  in  the  charge)  which  plaintiff  re- 
ceived from  the  builder.  The  plaintiff  admitted  receiv- 
ing certain  sums  of  money  from  the  builder  at  the  time 
of  the  alleged  proposition  to  build  at  Thirty-seventh 
Street,  the  same  builder  having  then  not  altogether  com- 
pleted the  Twenty-seventh  Street  house,  and  the  plaintiff 
alleged  that  such  moneys  were  advances  and  loans  to  en- 
able him  to  employ  a  staff  of  draughtsmen  upon  the 
Thirty-seventh  Street  plans  at  the  defendant's  behest. 
The  drawings  and  plans  offered  in  evidence  as  for  the 
contemplated  hotel  at  Thirty-seventh  Street,  contained 
no  "working  plans"  nor  "detail  drawings,"  as  to  which 
fact  there  was  at  first  a  misunderstanding.  The  sched- 
ule above  referred  to  is  admitted  in  evidence  and  reads : 
"Schedule  of  charges  adopted  by  the  American  Institute 
of  Architects.  For  full  professional  services  (including 
superintendence),  five  per  cent  upon  the  cost  of  the  work. 
Partial  service  as  follows:  For  preliminary  studies,  one 
per  cent;  for  preliminary  studies,  general  drawings  and 
specifications,  two  and  a-half  per  cent;  for  preliminary 
studies,  general  drawings,  details  and  specifications,  three 
and  a-half  per  cent.  For  stores,  three  per  cent  upon  the 
cost,  divided  in  the  above  ratio.  For  works  that  cost 
less  than  $5,000,  or  for  monumental  and  decorative  work, 
and  designs  for  furniture,  a  special  rate  in  excess  of  the 
above.  For  alterations  and  additions,  an  additional 
charge  to  be  made  for  surveys  and  measurements.  Nec- 
essary traveling  expenses  to  be  paid  by  the  client. 
The  architect's  payments  are  successively  due  as  his  work 
is  completed,  in  the  order  of  the  above  classifications. 
Until  an  actual  estimate  is  received,  the  charges  are 
based  upon  the  proposed  cost  of  the  works,  and  the  pay- 
ments are  received  as  installments  of  the  fee,  which  is 


DECISIONS  FOR  REFERENCE  READING          209 

based  upon  the  actual  cost.  Drawings,  as  instruments 
of  service,  are  the  property  of  the  architect.  By  order 
Richard  Upjohn,  President,  Carl  Pfeifer,  Secretary." 

John  Townshend  and  W ' .  G.  Peckham,  Jr.,  for  plaintiff. 
John  E.  Parsons,  for  defendant. 

The  cause  was  tried  before  HON.  H.  C.  VAN  VORST 
and  a  jury.  The  judge  charged  the  jury  as  follows: 

VAN  VORST,  J. — The  plaintiff,  gentlemen,  an  architect, 
interposes  in  this  action  two  distinct  claims  for  services, 
alleged  to  have,  been  performed  by  him  in  his  profession, 
for  the  defendant.  The  first  is  for  drawing  plans  and 
specifications,  making  estimates  and  calculating  quanti- 
ties, in  respect  to  building  on  an  addition  to  a  building 
on  the  south  side  of  Twenty-seventh  Street,  and  the  west 
side  of  Fifth  Avenue,  and  also  for  superintending  that 
work. 

There  is  no  dispute  but  that  the  plaintiff  rendered  this 
specific  service.  In  fact,  it  is  conceded  that  he  drew  the 
plans  and  specifications,  and  that  he  supervised  the  work 
upon  the  addition  to  the  apartment-house.  The  evidence 
is  that  for  such  services  the  customary  charge  is  five  per 
cent,  computed  upon  the  cost  of  the  building.  It  is  es- 
tablished that  the  claim  for  those  services  has  all  been 
adjusted  and  paid  by  the  defendant,  with  the  exception 
of  a  balance  of  about  $832,  which  amount  the  plaintiff 
still  claims  to  be  due  and  owing  to  him  for  his  services  in 
respect  to  the  addition  to  the  apartment-house. 

Now,  gentlemen,  by  the  contract  under  which  this 
building  was  erected,  the  contractor,  Mrs.  Jones,  under- 
took to  complete  the  work  on  or  before  the  1st  of  Febru- 
ary, 1874,  and  the  contract,  which  is  in  writing,  states 
that  the  work  was  to  be  done  in  a  good,  workmanlike 
and  substantial  manner,  to  the  satisfaction,  and  under 


210        LAW  OF  ARCHITECTURE  AND  BUILDING 

the  direction,  of  the  plaintiff,  the  architect,  to  be  testified 
by  a  writing  or  certificate  under  his  seal.  These  are  sig- 
nificant words,  gentlemen,  and,  doubtless,  you  will  not 
lose  sight  of  them.  The  duty  of  the  plaintiff,  therefore, 
it  is  quite  clear,  was  to  see  to  it  that  the  building  was 
erected,  having  reference  now,  gentlemen,  to  those  terms 
that  I  have  suggested  to  you  as  being  significant.  The 
work  had  to  be  done  in  accordance  with  the  plans,  ele- 
vations, sections  and  specifications  furnished  by  the 
plaintiff,  and  to  his  satisfaction ;  and  the  payment  to  the 
contractor  for  the  work  as  it  progressed,  which  was  to  be 
paid  in  fifteen  installments,  was  dependent,  in  each  in- 
stance, upon  a  certificate  in  writing,  to  be  obtained  from 
the  plaintiff,  that  the  contractor  was  entitled  to  the  spe- 
cific payments.  Of  course,  the  giving  of  those  certificates 
contemplated  that  the  contractor  had  done  the  work  in 
conformity  with  the  plans  and  specifications,  and  to  the 
satisfaction  of  the  plaintiff.  The  plaintiff  then  occupied 
an  important  and  highly  responsible  position  in  relation 
to  this  work,  both  to  the  contractor  and  to  the  defendant. 
It  was  clearly  his  duty  to  exercise  proper  vigilance  and 
skill  in  the  supervision  of  this  work;  to  see  that  it  was 
done  in  the  manner  contemplated  by  the  specifications, 
and  in  a  good,  workmanlike  and  substantial  manner. 

The  defendant  claims  that  the  plaintiff  has  neglected 
his  duty  in  his  employment,  and  that  through  such  neglect 
she  has  sustained  damage;  and,  gentlemen,  this  is  the 
subject  that  chiefly,  I  may  say  almost  exclusively,  de- 
mands your  attention  upon  this  branch  of  the  case.  Was 
the  material  used  of  the  quality  required?  Was  the 
work  done  in  the  manner  contemplated  by  the  contract — 
the  plans  and  specifications?  The  plaintiff  gave  the  cer- 
tificates called  for,  and  upon  their  faith  the  defendant 
has  paid  out,  as  is  claimed  by  her,  the  cost  of  the  struc- 
ture. Fourteen  of  these  certificates,  signed  by  the 
plaintiff,  have  been  produced  in  evidence;  the  last,  the 
fifteenth  certificate,  is  not  produced  according  to  my  rec- 


DECISIONS  FOR  REFERENCE  READING          211 

ollection  of  the  case,  although  there  has  been,  I  believe, 
some  evidence  given  with  regard  to  the  substance  of  its 
contents,  from  a  memorandum  that  Mr.  Oilman  had. 

Gentlemen,  it  was  the  duty  of  the  plaintiff  to  exercise 
the  skill  and  attention  required  of  a  person  standing  in 
the  relation  he  did  with  respect  to  the  materials  to  be 
used  and  the  work  to  be  done.  Does  the  evidence  show 
that  he  has  been  at  fault  in  these  respects?  Now,  that 
is  for  you  to  determine.  Evidence  has  been  adduced  in 
regard  to  the  material  used  and  its  character,  and  as  to 
the  manner  in  which  the  work  has  been  done.  The  paint- 
ing and  plastering,  it  is  claimed,  are  not  such  as  is  called 
for;  that  they  are  defective  in  character  and  execution. 
Gentlemen,  you  and  I  are  greatly  indebted  to  the  learned 
gentlemen  who  have  tried  this  case  with  signal  ability 
on  each  side;  and  they  have  called  your  attention  to  the 
evidence,  Mr.  Parsons  giving  you  his  views,  going  into 
details  with  regard  to  the  points  in  which  he  says  this 
work  has  not  been  done  according  to  the  plans  and  speci- 
fications, and  the  learned  gentlemen  on  the  other  side 
have  given  you  their  views  of  the  same  branch  of  the 
case.  Therefore,  I  say,  I  am  relieved  from  going  into 
detail  with  regard  to  these  specific  points  in  which  it  is 
claimed  that  the  work  has  not  been  done  according  to  the 
plans  and  specifications,  and  I  am  the  more  reluctant, 
gentlemen,  to  enter  into  any  statement  upon  that  point, 
because  I  am  aware  that  it  is  a  part  of  the  case,  entirely 
and  exclusively  within  your  province,  and  because  by 
mentioning  one  subject  or  omitting  to  mention  another 
it  might  be  considered  that  I  attached  an  undue  impor- 
tance to  one  and  did  not  properly  appreciate  the  im- 
portance of  another.  Therefore  I  am  disposed  to  leave 
this  entire  matter  where  it  properly  belongs,  with  you, 
and  upon  you  the  responsibility  must  rest  to  determine 
it  properly  and  correctly. 

But,  gentlemen,  you  will  determine,  under  the  evi- 
dence, how  the  facts  are  in  these  regards,  and  if  the  work 


212        LAW  OF  ARCHITECTURE  AND  BUILDING 

and  material  were  defective,  then  whether  such  defects 
are  in  consequence  of,  or  owing  to,  the  negligence  of  the 
plaintiff  in  any  regard.  In  determining  this  you  will 
doubtless  consider,  and  it  would  be  your  duty  to  con- 
sider, the  obligation  and  the  duty  the  plaintiff  assumed 
and  the  manner  in  which  he  has  met  those  obligations 
and  discharged  the  duty,  and  whether  the  defects  are  of 
such  a  character  as  by  the  exercise  of  the  ordinary  skill 
and  attention  of  a  person  of  his  profession  and  in  his  re- 
lation they  could  have  been  guarded  against  and  pre- 
vented. 

Now,  gentlemen,  for  any  deficiency,  for  any  damage  the 
defendant  has  sustained  through  the  neglect  of  the 
plaintiff,  if  there  be  any  neglect,  in  the  superintending 
of  this  work  and  in  giving  the  certificates  upon  which  she 
has  made  payments,  the  plaintiff  is  liable  and  the  amount 
of  such  damage  should  be  allowed  in  this  action  to  her. 

The  next  claim  of  the  plaintiff  is  for  drawing  plans 
and  specifications  and  for  other  services  as  an  architect 
in  regard  to  a  building  proposed  to  be  erected  on  the  cor- 
ner of  Thirty-seventh  Street  and  Fifth  Avenue.  The 
building  was  not  erected  and  the  plaintiff's  claim  there- 
for, is,  by  himself,  limited  to  two  and  a  half  per  cent 
instead  of  the  full  charge  of  five  per  cent  for  drawing 
the  plans,  &c.,  and  three  quarters  of  one  per  cent  for 
taking  the  quantities,  in  all  amounting  to  the  sum  of 
$10,562.  The  plaintiff  claimed  that  he  performed  these 
services,  and  that  he  did  so  upon  the  defendant's  re- 
tainer. He  has  been  examined  himself  as  a  witness  on 
this  subject,  as  has  also  Mr.  Crooks,  and  it  is  claimed  by 
the  plaintiff's  counsel  that  there  is  found  in  the  testimony 
of  other  witnesses  corroboration  of  the  principal  fact,  as 
he  claims,  that  plaintiff  was  employed  by  the  defendant 
to  render  these  specific  services  for  which  he  seeks  a  re- 
covery in  this  action  growing  out  of  the  Thirty-seventh 
property,  which  was  contemplated  to  be  improved.  Now, 
in  order  to  sustain  the  plaintiff's  claim  for  these  services 


DECISIONS  FOR  REFERENCE  READING          213 

in  respect  to  this  Thirty-seventh  Street  property,  you  are 
to  be  satisfied  that  he  performed  the  work  and  services 
necessary  to  entitle  him  to  the  commission  charged ;  that 
he  performed  that  service  which  would  entitle  him  to  a 
commission  of  two  and  one-half  per  cent  for  drawing 
the  plans  and  specifications,  and  three  quarters  of  one 
per  cent  for  taking  out  the  quantities:  that  he  actually 
performed  this  service;  that  is  to  say,  that  he  drew  and 
completed  the  plans  and  estimates,  and  computed  the 
quantities  for  a  building  proposed  to  be  erected  by  the 
defendant  upon  the  property  in  question.  I  don't  sup- 
pose that  the  plaintiff  himself  would  insist  that  for  an 
immature  plan,  for  an  entrance  upon  a  service  of  this 
character ;  that  is,  the  drawing  of  plans  and  specifications, 
and  the  taking  out  of  quantities,  and  the  like  of  that,  for 
an  incomplete  service  in  that  regard  he  would  be  entitled 
to  his  full  commission,  and  therefore  his  claim  is  that  he 
has  rendered  all  the  services  necessary  to  entitle  him  to 
the  full  commission.  Of  course,  the  drawing  of  plans 
for  a  building  would  seem  in  reason  to  be  a  sort  of  unit, 
a  complete  thing;  that  there  is  everything  here  from 
which  the  building  might  be  erected  from  its  foundation 
to  the  roof  or  the  chimneys  on  the  roof,  everything.  I 
suppose  that  these  papers,  which  are  designated  by  the 
general  term,  plans  and  specifications,  and  drawings,  and 
estimates,  and  all  that,  represent  the  complete  building 
as  far  as  it  can  be  represented  on  paper.  I  think  that 
would  in  reason  be  the  construction  to  be  put  upon  such 
an  effort  as  is  contemplated  by  the  case.  Now,  gentle- 
men, I  say  that  you  are  to  be  satisfied  that  the  work  was 
done  in  that  way  substantially  and  completely;  in  other 
words,  that  he  has  rendered  all  the  service  to  entitle  him 
to  such  a  commission  as  that. 

Now,  as  the  charge  made  by  the  plaintiff  is  upon  the 
basis  of  the  contemplated  cost  of  the  building,  it  would 
seem  that  you  should  be  satisfied  that  the  arrangements 
between  the  plaintiff  and  defendant  had  progressed,  ad- 


214       LAW  OF  ARCHITECTURE  AND  BUILDING 

vanced,  to  the  position  that  the  expense  of  the  contem- 
plated building  had  been  substantially  assumed  or  in  judg- 
ment reached,  and  with  respect  to  which  the  plans  and 
estimates  were  made  or  accommodated.  It  would  seem 
that  the  cost  of  the  improvement  is  an  element  in  arriv- 
ing at  the  amount  of  compensation  that  the  plaintiff 
would  be  entitled  to,  «r  that  an  architect  would 
be  entitled  to,  for  performing  these  services.  It 
must  be  upon  the  basis  of  the  cost  of  the  building  and 
the  completion  of  all  the  plans  and  specifications  with 
regard  to  it.  Now,  if  that  were  all  that  belongs  to  this 
branch  of  the  case  probably  you  could  not  have  a  great 
deal  of  difficulty,  and  at  any  rate  that  your  determination 
could  be  more  rapidly  reached  were  it  not  for  some  other 
considerations  which  are  to  be  noticed.  But  before  stat- 
ing that  I  presume,  gentlemen,  that  I  may  make  a  general 
statement  to  you,  which  will  doubtless  be  satisfactory  to 
your  reason :  That  parties  are  entitled  to  be  paid  for  such 
work,  labor  and  services  as  they  have  rendered  to  others 
at  their  request  and  for  their  advantage.  That  is  an  or- 
dinary rule,  good  in  morals  as  in  law.  Now,  if  this  work 
has  been  performed  in  the  manner  that  I  have  described, 
is  there  anything  in  this  case  which  relieves  the  de- 
fendant from  paying  the  plaintiff's  claim? 

The  defendant  herself  has  been  examined  as  a  witness, 
and  she  says,  among  other  things,  that  she  did  not  own 
the  property.  But,  gentlemen,  the  mere  fact  that  Mrs. 
Stevens  did  not  own  the  property  is  not  enough  to  ex- 
cuse her,  and  I  do  not  understand  her  learned  counsel 
to  advance  that  proposition  either  because  she  might  have 
contemplated  acquiring  it  for  the  purpose  of  improving 
it,  and  in  that  way  employed  the  plaintiff  to  perform  the 
services  which  he  claims  to  have  rendered;  and  whether 
she  ever  acquired  the  property  or  not,  it  would  be  imma- 
terial if  she  did  employ  him  to  render  the  service,  and  he 
rendered  it  at  her  request  without  any  other  condition  as 
to  payment.  I  say  that  the  mere  fact  that  she  did 


DECISIONS  FOR  REFERENCE  READING          215 

not  own  the  property  herself,  separated  from  every  other 
consideration,  would  be  no  reason  to  relieve  her  from  her 
obligation  to  pay  for  the  work  which  had  been  performed, 
if  it  was  performed  at  her  request. 

But  the  defendant  claims,  among  other  things,  that  she 
did  contemplate  acquiring  the  property  and  improving  it, 
and  it  is  within  her  evidence,  it  is  within  her  claim  at  any 
rate,  or  that  of  her  counsel,  that  this  was  substantially  a 
conditional  affair — it  is  her  theory  of  the  case,  that  it 
was  the  understanding  that,  for  whatever  services  plain- 
tiff performed  in  the  immature  condition  in  which  the 
whole  arrangement  was,  he  was  not  to  be  paid ;  in  other 
words,  that  he  said  it  should  cost  her  nothing.  There 
seems  to  be  no  controversy,  as  I  have  already  stated, 
about  there  being  a  balance  due  to  Mr.  Oilman  for  serv- 
ices upon  the  apartment-house.  His  claim,  with  regard 
to  services  upon  the  Thirty-seventh  Street  house,  is  dis- 
puted entirely,  and  the  defendant  sets  up  a  claim  for  dam- 
ages. As  I  have  stated  before,  if  the  defendant  has  sus- 
tained any  damage  through  the  plaintiff's  negligence,  it 
is  proper  for  you,  and  you  should  set  off  the  damage  she 
has  so  sustained  against  the  claim  on  the  Twenty-seventh 
Street  house ;  and  if  that  is  all  there  is  of  the  case  under 
the  pleadings,  she  would  be  entitled  to  a  judgment  for 
any  overplus  of  damages,  if  there  is  any  in  her  favor. 
But  if  you  come  to  the  conclusion  that  the  plaintiff  is  en- 
titled to  pay  for  his  services,  for  the  completion  of  the 
drawings,  plans  and  specifications  for  the  Thirty-seventh 
Street  house,  then  you  may  set  off  against  both  claims 
whatever  damages,  if  any,  you  find  she  has  sustained 
through  the  negligence  of  the  plaintiff,  if  he  has  been 
guilty  of  any  negligence  (which  I  have  already  described 
to  you  in  the  other  part  of  the  case)  you  may  set  it  off 
against  that,  and  for  any  residue  in  his  favor,  if  there  is 
any,  you  should  render  him  a  judgment  for  such  residue. 
I  think,  gentlemen,  that  is  all  that  is  necessary  for  me  to 
say  about  that.  This  is  a  case  of  importance  to  the  par- 


216        LAW  OF  ARCHITECTURE  AND  BUILDING 

ties ;  it  is  important  to  the  plaintiff ;  it  is  important  to  the 
defendant;  and  I  cannot  think  that  your  labors  will  be 
protracted  under  the  examination  which  the  case  has  re- 
ceived at  the  hands  of  the  intelligent  counsel,  to  whom 
its  care  has  been  intrusted. 

The  plaintiff  asks  me  to  charge  you,  and  I  do  charge 
you,  "That  an  architect  is  only  required  to  perform  his 
work  with  ordinary  care,  diligence  and  skill.  Ordinary 
or  due  skill  means  that  degree  of  skill  which  men  en- 
gaged in  that  peculiar  art  usually  employ.  It  does  not 
mean  that  high  degree  of  skill  which  belongs  only  to  a 
few  men  of  extraordinary  endowments  and  capacity. 

"That  the  burden  is  upon  the  defendant  to  establish 
that  the  plaintiff  did  not  exercise  ordinary  care,  diligence 
and  skill  in  his  superintendence  of  the  building,  and  that 
unless  the  jury  are  satisfied  that  the  plaintiff  did  not  ex- 
ercise ordinary  care,  diligence  and  skill  in  such  superin- 
tendence, the  plaintiff  is  entitled  to  recover  for  his  serv- 
ices as  architect  for  the  addition  to  the  Stevens  house,  so 
called. 

"That  the  mere  fact  that  the  plaintiff  introduced  or  rec- 
ommended Jones  to  defendant,  or  recommended  defend- 
ant to  employ  Jones,  does  not  make  the  plaintiff  responsi- 
ble in  this  action  for  the  intemperance  or  other  miscon- 
duct of  Jones. 

"That  for  any  misfeasance  of  Jones  in  the  matter  of 
the  contract,  Jones  himself,  or  Mrs.  Jones,  or  her  surety 
alone,  is  responsible. 

"That  the  defendant,  not  having  set  up  any  defense 
of  fraud  or  collusion  between  plaintiff  and  Jones  in  her 
answer,  the  jury  are  not  to  consider  that  as  a  question 
in  the  case." 

With  respect  to  that,  I  say  that  that  question  of  abso- 
lute fraud  is  not  involved  in  this  action.  The  question 
is  whether  plaintiff  has  neglected  his  duty  as  superin- 
tending architect  to  the  defendant's  injury.  If  there 
was  any  collusion  between  Jones  and  the  plaintiff,  it  has 


DECISIONS  FOR  REFERENCE  READING          217 

no  bearing  otherwise  than  as  it  affects  the  manner  in 
which  the  plaintiff  discharged  his  duty  to  the  defendant, 
and  whether  any  negligence  grew  out  of  it  to  her  in- 
jury. 

"That  for  any  delay  in  the  completion  of  the  contract, 
and  for  any  damages  arising  therefrom,  the  plaintiff  is 
in  no  case  responsible.  For  any  damage  in  this  regard 
the  defendant  has  her  remedy  on  the  contract."  With 
respect  to  that,  I  say  that  is  so,  unless  the  delay  was  in 
some  way  the  result  of  the  plaintiff's  negligence  in  super- 
intending, and  could  have  been  avoided  by  the  exercise 
of  ordinary  care  on  his  part ;  and  that  if  there  is  any  lia- 
bility for  damages  flowing  from  it,  it  would  be  the  ap- 
proximate damage  flowing  from  such  a  neglect  of  duty. 

"That  if  the  jury  are  satisfied  the  plaintiff  did  not  ex- 
ercise ordinary  care,  diligence  and  skill  in  the  superin- 
tendence of  the  addition  to  the  Stevens  house,  then  the 
defendant  is  entitled  to  such  damages  as  were  occasioned 
thereby,  and  such  damages  are  the  costs  of  making  the 
work  a  good  job  according  to  the  requirements  of  the 
contract."  That  is  so  in  regard  to  those  particular  mat- 
ters. If  it  be  in  that  condition  that  this  request  con- 
templates, or  assumes  that  the  cost  of  making  the  work 
a  good  job  according  to  the  contract  would  be  the  measure 
of  damages,  and  I  do  not  understand  the  learned  counsel 
for  the  defendant  even  to  dissent  from  that,  judging  from 
the  manner  in  which  he  has  conducted  that  branch  of  the 
case,  because  the  defendant's  counsel  has  introduced  evi- 
dence with  regard  to  these  particular  points,  to  show 
what  it  would  cost  to  make  the  premises  according  to  the 
plans  and  specifications,  or  to  render  them  in  a  good  and 
workmanlike  condition  in  the  particulars  referred  to 
there. 

"That  there  is  no  evidence  of  any  loss  of  tenants  or 
any  loss  of  rent,  or  that  the  house,  for  all  purposes  for 
which  it  was  intended,  did  not  fully  answer  the  object  in- 
tended." Now,  gentlemen,  I  do  not  myself  remember 


2i8        LAW  OF  ARCHITECTURE  AND  BUILDING 

that  there  is  any  evidence  of  any  loss  of  rents.  My  im- 
pression is  the  other  way,  that  there  is  no  such  evidence ; 
but  it  is  for  you,  entirely,  to  pass  upon  the  other  ques- 
tion embraced  in  this ;  whether  the  buildings  did  not  fully 
answer  the  object  intended,  that  is  for  you  to  determine 
under  the  evidence. 

"That  as  to  the  charge  for  preparing  the  plans  re- 
specting the  Thirty-seventh  Street  lots,  if  the  jury  be- 
lieve that  the  defendant  did  authorize  the  preparation  of 
said  plans,  the  plaintiff  is  entitled  to  recover  his  fees  for 
such  services."  This  assumes  that  he  rendered  the  serv- 
ices at  her  request,  or  for  her  advantage. 

"That  the  fees  for  preparing  such  plans,  if  payable  at 
all,  are  two  and  a-half  per  cent  on  the  value  of  the  con- 
templated building."  That  is  correct.  I  suppose  you  de- 
sire to  add  the  three- fourths  of  one  per  cent ;  you  do  not 
say  anything  about  that. 

Mr.  Peckham:    We  do  not  desire  to. 

The  Court:  I  charge  you  that  the  fees,  if  payable  at 
all,  are  two  and  a  half  per  cent  upon  the  contemplated 
cost  of  the  building.  There  seems  to  be  no  controversy 
that  those  are  the  rates  that  architects  are  entitled  to  re- 
cover in  cases  of  this  character. 

A  Juror:  I  would  ask  if  that  does  not  cover  working 
plans  ? 

The  Court:    Yes.     The  next  one  is : 

"That  whether  the  defendant  did  or  did  not  own,  or 
had  or  had  not  elected  to  take  the  Thirty-seventh  Street 
lots  is  not  decisive  of  plaintiff's  right  to  recover  or  of  the 
defendant's  liability  to  pay.  If  the  defendant  ordered 
the  plans  to  be  drawn  it  was  not  for  the  plaintiff  to  in- 
quire whether  or  not  the  defendant  had  any  interest  in 
the  ground. 

"That  the  defendant  not  having  paid  any  of  the  bills 
for  extras,  cannot  claim  any  damages  in  respect  of  such 
extras."  Whether  she  has  paid  or  not  for  extras  is  not 
the  question.  If  she  is  liable  to  pay  that  is  enough. 


DECISIONS  FOR  REFERENCE  READING          219 

"That  from  any  damages  to  which  the  defendant  may 
have  shown  herself  to  be  entitled,  is  to  be  deducted  the 
value  of  the  extra  work  for  which  she  has  not  paid." 
That  I  decline  to  charge  in  that  form.  I  charge  this : 

"That  Mrs.  Stevens  is  chargeable  with  the  knowledge 
of  the  standard  and  regular  rates  of  architects'  fees  as 
asked  for  by  Mr.  Oilman  on  the  Thirty-seventh  Street 
hotel,  because  it  appears  that  she  had  been  charged  the 
same  rates  by  Mr.  Oilman  in  several  previous  jobs."  So 
much,  gentlemen,  for  the  request  of  the  plaintiff. 

Mr.  Peckham:  I  ask  your  honor  to  charge,  that  the  de- 
tails technically  so  called,  are  not  claimed  or  called  for 
in  the  charge  of  two  and  a-half  per  cent.  One  per  cent 
additional  is  allowed  on  the  schedule  for  the  technical  de- 
tails, which  the  juror  calls  the  working  drawings. 

The  Court:    I  charge  that. 

Mr.  Townshend  excepts  to  those  parts  of  the  charge 
plaintiff's  requests  are  not  charged. 

Defendant's  counsel  accepts  the  charge  itself  but  ex- 
cepts separately  to  the  charge,  so  far  as  it  concerns  the 
request  of  the  plaintiff  on  various  subjects. 

Verdict  for  the  plaintiff  $3,000. 

OTTO    L.    SPANNHAKE,    INC.,    v.    MOUNTAIN 

CONSTRUCTION  COMPANY  AND  NATIONAL 

SURETY  COMPANY, 

(159  App.  Div.  (N.  Y.)  727.) 

SCOTT,  J.  728:  The  defendant  Mountain  Construc- 
tion Company  made  a  contract  with  plaintiff,  an  archi- 
tect, to  draw  plans  for  and  superintend  the  construction 
of  certain  houses  in  the  City  of  New  York.  The  plain- 
tiff filed  a  lien  for  the  value  of  his  services  both  for  draw- 
ing plans  and  for  superintendence.  This  action  is  to  fore- 
close that  lien.  The  City  Court  awarded  judgment  to 
plaintiff  for  both  classes  of  service.  This  judgment  was 
modified  by  the  Appellate  Term  by  striking  out  so  much 


of  the  recovery  as  represented  the  value  of  the  plans,  al- 
lowing plaintiff  to  recover  only  for  superintendence.  In 
this,  as  we  think,  the  Appellate  Term  erred.  The  gen- 
eral rule  to  be  deduced  from  the  adjudicated  cases  is 
that  while  an  architect  is  not  entitled  to  a  mechanic's 
lien  for  drawing  plans  alone,  yet  when  he  both  draws 
plans  and  superintends  construction  he  is  entitled  to  a 
lien  for  the  value  of  both  plans  and  superintendence. 
In  Stryker  v.  Cassidy  (76  N.  Y.  50,  53)  the  Court  of 
Appeals  said :  "An  architect  who  makes  the  plans  and 
supervises  the  erection  of  a  building  is  within  the  words 
and  reason  of  the  law."  The  rule  above  stated  is  well  il- 
lustrated by  Rinn  v.  Electric  Power  Company  (3  App. 
Div.  305).  In  that  case  the  architect  had  drawn  plans 
for  a  large  building,  of  which,  however,  only  one-half 
had  been  erected  under  his  superintendence.  He  was 
allowed  a  lien,  in  addition  to  his  fees  for  superintend- 
ence, for  one-half  of  the  value  of  the  plans  which  he  had 
prepared  for  the  whole  building,  the  Court  remarking 
that  an  architect  cannot  have  a  lien  for  making  plans 
alone,  but  when  he  makes  the  plans  and  supervises  the 
construction  "it  is  the  part  the  architect  takes  during  the 
construction  that  draws  his  services  within  the  lien  law." 
In  Thompson-Starrett  Co.  v.  Brooklyn  Heights  Realty 
Co.  (in  App.  Div.  358)  the  plaintiff  was  denied  a  lien 
for  preparing  plans  because  no  building  was  erected.  In 
the  present  case  the  plaintiff  not  only  drew  plans  but  su- 
perintended the  construction,  as  was  found  by  the  City 
Court,  and  virtually  affirmed  by  the  Appellate  Term, 
which  allowed  a  recovery  for  the  value  of  his  services 
for  supervision.  There  is  no  force  in  the  suggestion  that 
plaintiff  should  have  filed  a  separate  lien  on  each  build- 
ing. (Woolf  v.  Schaefer,  103  App.  Div.  567.) 

The  determination  of  the  Appellate  Term  must  be  re- 
versed and  the  judgment  of  the  City  Court  affirmed,  with 
costs  to  appellant  in  this  court  and  at  the  Appellate 
Term. 


DECISIONS  FOR  REFERENCE  READING          221 

INGRAHAM,  P.  J.,  CLARKE,  DOWLING  and  HOTCHKISS, 
J.  J.,  concurred. 

Determination  reversed  and  judgment  of  City  Court 
affirmed,  with  costs  to  appellant  in  this  court  and  at  the 
Appellate  Term.  Order  to  be  settled  on  notice. 


APPENDIX  B 

THE  STANDARD  DOCUMENTS  OF 

THE  AMERICAN 
INSTITUTE  OF  ARCHITECTS 

(INCLUDING  VARIOUS  SUPPLEMENTAL  FORMS  AND 
SUGGESTIONS  ISSUED  BY  THE  INSTITUTE) 

(Published   by   special    permission   and   courtesy   of   the  American   Institute 
of   Architects.) 

NOTE. — This  Form  of  Agreement  is  approved  by  the  American 
Institute  of  Architects  when  used  with  the  General  Conditions  of 
the  Contract  issued  by  the  Institute. 

THE  STANDARD  FORM  OF  AGREEMENT 
BETWEEN  CONTRACTOR  AND  OWNER 

ISSUED    BY    THE    AMERICAN    INSTITUTE    OF    ARCHITECTS 

This    form    has    been    approved    by    the    National    Association    of    Builders' 

Exchanges,    The    National    Association    of    Master    Plumbers, 

and    the    National    Association    of    Master    Steam 

and  Hot  Water  Fitters. 

Second   Edition,   Copyright    1915    by   the   American   Institute    of   Architects, 
The   Octagon,   Washington,   D.    C. 

This   Form   is   to   be   used   only   with   the    Standard    General    Conditions   of 
the  Contract. 


THIS  AGREEMENT  made  the. 

day  of in  the  year  Nineteen  Hundred  and. 

by  and  between 


hereinafter  called  the  Contractor,  and, 


hereinafter  called  the  Owner, 

WITNESSETH,  that  the  Contractor  and  the  Owner  for  the 
considerations  hereinafter  named  agree  as  follows: 
Article  i.     The  Contractor  agrees  to  provide  all  the  ma- 
terials and  to  perform  all  the  work  shone  on  i.he  Draw- 

222 


STANDARD  DOCUMENTS                        223 
ings  and  described  in  the  Specifications  entitled 

(Here  insert  the  caption  descriptive  of  the  work  as  used  in  the  Proposal, 
General    Conditions,    Specifications,   and   upon   the   Drawings.) 


prepared  by, 


acting  as,  and  in  these  Contract  Documents  entitled  the 

Architect,  and  to  do  everything  required  by  the  General 

Conditions  of  the  Contract,  the  Specifications  and  the 

Drawings. 

Article  2.    The  Contractor  agrees  that  the  work  under 

this  Contract  shall  be  substantially  completed 

(Here  insert  the  date  or  dates  of  completion,  and  stipulations  as  to  liqui- 
dated damages,  if  any.) 


Article  j.  The  Owner  agrees  to  pay  the  Contractor  in 
current  funds  for  the  performance  of  the  Contract 

($ )  subject 

to  additions  and  deductions  as  provided  in  the  General 
Conditions  of  the  Contract  and  to  make  payments  on 
account  thereof  as  provided  therein,  as  follows : 

(Here  insert  provisions  as  to  the  method  and  times  of  payments.) 


Article  4.  The  Contractor  and  the  Owner  agree  that  the 
General  Conditions  of  the  Contract,  the  Specifications 
and  the  Drawings,  together  with  this  Agreement,  form 
the  Contract,  and  that  they  are  as  fully  a  part  of  the  Con- 
tract as  if  hereto  attached  or  herein  repeated;  and  that 
the  following  is  an  exact  enumeration  of  the  Specifica- 
tions and  Drawings: 


The  Contractor  and  the  Owner  for  themselves,  their  sue- 


224        LAW  OF  ARCHITECTURE  AND  BUILDING 

cessors,   executors,   administrators   and  assigns,   hereby 

agree  to  the  full  performance  of  the  covenants  herein 

contained. 

IN   WITNESS   WHEREOF   they   have  hereunto   set  their 

hands  and  seals,  the  day  and  year  first  above  written. 

In  Presence  of 


as  to (SEAL) 


as  to (SEAL) 


THE  GENERAL  CONDITIONS  OF  THE 
CONTRACT 

Standard  Form  of  the  American  Institute  of  Architects 

This    form    has    been    approved    by    the   National    Association    of    Builders' 

Exchanges,    The    National    Association    of    Master    Plumbers, 

and    the    National    Association    of    Master    Steam 

and  Hot  Water  Fitters. 

Second  Edition,   Copyright   1915,   by  the  American   Institute   of  Architects, 
The  Octagon,  Washington,  D.   C. 

INDEX  TO  THE  ARTICLES  OF  THE  GENERAL  CONDITIONS 


1.  Definitions. 

2.  Documents. 

3.  Details  and   Instructions. 

4.  Copies    Furnished. 

5.  Shop    Drawings. 

6.  Drawings  on  the  Work. 

7.  Ownership   of    Drawings. 

8.  Samples. 

9.  The  Architect's   Status. 
10.  The  Architect's   Decisions, 
n.  Foreman,  Supervision. 

12.  Materials,    Labor,    Appliances. 

13.  Inspection   of  Work. 

14.  Correction     Before     Final     Pay 

ment. 

15.  Deductions 

Work. 

j  6.  Correction 
ment. 

17.  Protection    of   Work   and    Prop- 

erty. 

1 8.  Emergencies. 

19.  Damage  to  Persons. 

20.  Liability    Insurance. 

21.  Fire    Insurance. 

22.  Guaranty   Bonds. 

23.  Cash  Allowances. 


for       Uncorrected 
After     Final      Pay- 


24.  Changes  in  the  Work. 

25.  Claims   for   Extras. 

26.  Applications    for    Payments. 

27.  Certificates    and    Payments. 

28.  Payments   Withheld. 

29.  Liens. 

30.  Permits   and    Regulations. 

31.  Royalties   and    Patents. 

32.  Use   of   Premises. 

33.  Cleaning  Up. 

34.  Cutting,  Patching  and  Digging. 

35.  Delays. 

36.  Owner's  Right  to  Do  Work. 

37.  Owner's      Right     to     Terminate 

Contract. 

38.  Contractor's  Right  to  Stop  Work 

or  Terminate  Contract. 

39.  Damages. 

40.  Mutual    Responsibility    of    Con- 

tractors. 

41.  Separate  Contracts. 

42.  Assignment. 

43.  Subcontracts. 

44.  Relations      of     Contractor     and 

Subcontractor. 

45.  Arbitration. 


STANDARD  DOCUMENTS  225 

Article  i.    Principles  and  Definitions. — 

(a)  The  Contract  Documents  consist  of  the  Agreement, 

the  General  Conditions  of  the  Contract,  the  Draw- 
ings and  Specifications.  These  form  the  Contract. 

(b)  The  Owner,  the  Contractor  and  the  Architect  are 

those  named  as  such  in  the  Agreement.  They  are 
treated  throughout  the  Contract  Documents  as  if 
each  were  of  the  singular  number  and  masculine 
gender. 

(c)  The  Contractor  shall,  as  in  Article  43,  be  responsible 

to  the  Owner  for  the  acts  and  omissions  of  his 
subcontractors  and  of  all  persons  directly  or  in- 
directly employed  by  him  or  them  in  connection 
with  the  work. 

(d)  The  term  Subcontractor  includes  only  those  having 

a  direct  contract  with  the  Contractor  and  it  in- 
cludes one  who  furnishes  material  even  though  he 
does  no  work. 

(e)  The  term  "person"  or  "anyone"  as  employed  herein 

shall  be  taken  to  include  a  firm  or  corporation. 

(f)  Written  notice  shall  be  deemed  to  have  been  duly 

served  if  delivered  in  person  to  the  individual  or 
to  a  member  of  the  firm  or  to  an  officer  of  the 
corporation  for  whom  it  is  intended,  or  if  delivered 
at  or  mailed  to  the  last  business  address  known  to 
him  who  gives  the  notice. 

(g)  The  term   "work"   of   the   Contractor  or   Subcon- 

tractor includes  labor  or  materials  or  both, 
(h)  When  the  words  "approved,"  "satisfactory,"  "equal 
to,"  "proper,"  "as  directed,"  etc.,  are  used,  ap- 
proval, etc.,  by  the  Architect  is  understood, 
(j)  All  time  limits  stated  in  the  Contract  Documents  are 

of  the  essence  of  the  contract, 
(k)  The  law  of  the  place  of  building  shall  govern  the 

construction  of  this  contract. 

Art.  2.    Execution,  Correlation  and  Intent  of  Docu- 
ments.— The    Contract    Documents    shall   be    signed    in 


226        LAW  OF  ARCHITECTURE  AND  BUILDING 

duplicate  by  the  Owner  and  Contractor.  In  case  of 
failure  to  sign  the  General  Conditions,  Drawings  or 
Specifications  the  Architect  shall  identify  them.  Even 
though  the  signatures  of  the  Owner  and  the  Contractor 
may  have  been  attested  by  witnesses  they  may  be  proved 
by  any  competent  evidence. 

The  Contract  Documents  are  complementary,  and  what 
is  called  for  by  any  one  shall  be  as  binding  as  if  called  for 
by  all.  The  intention  of  the  documents  is  to  include  all 
labor  and  materials  reasonably  necessary  for  the  proper 
execution  of  the  work.  It  is  not  intended,  however,  that 
materials  or  work  not  covered  by  or  properly  inferable 
from  any  heading,  branch,  class  or  trade  of  the  specifica- 
tions shall  be  supplied  unless  distinctly  so  noted  on  the 
drawings.  Materials  or  work  described  in  words  which 
so  applied  have  a  well  known  technical  or  trade  meaning 
shall  be  held  to  refer  to  such  recognized  standards. 

Art.  j.  Detail  Drawings  and  Instructions. — The 
Architect  shall  furnish,  with  reasonable  promptness,  ad- 
ditional instructions,  by  means  of  drawings  or  otherwise, 
necessary  for  the  proper  execution  of  the  work.  All 
such  drawings  and  instructions  shall  be  consistent  with 
the  Contract  Documents,  true  developments  thereof,  and 
reasonably  inferable  therefrom.  The  work  shall  be 
executed  in  conformity  therewith  and  the  Contractor 
shall  do  no  work  without  proper  drawings  and  instruc- 
tions. 

The  Contractor  and  the  Architect,  if  either  so  re- 
quests, shall  jointly  prepare  a  schedule,  subject  to  change 
from  time  to  time  in  accordance  with  the  progress  of 
the  work,  fixing  the  latest  dates  at  which  the  various 
detail  drawings  will  be  required,  and  the  Architect  shall 
furnish  them  in  accordance  with  that  schedule.  Under 
like  conditions,  a  schedule  shall  be  prepared,  fixing  dates 
for  the  submission  of  shop  drawings,  for  the  beginning 
of  manufacture  and  installation  of  materials  and  for  the 
completion  of  the  various  parts  of  the  work. 


STANDARD  DOCUMENTS  227 

Art.  4.  Copies  Furnished. — Unless  otherwise  pro- 
vided in  the  Contract  Documents  the  Architect  will 
furnish  to  the  Contractor,  free  of  charge,  all  copies  of 
drawings  and  specifications  reasonably  necessary  for  the 
execution  of  the  work. 

Art.  j.  Shop  Drawings. — The  Contractor  shall  sub- 
mit two  copies  of  all  shop  or  setting  drawings  and 
schedules  required  for  the  work  of  the  various  trades 
and  the  Architect  shall  pass  upon  them  with  reasonable 
promptness.  The  Contractor  shall  make  any  corrections 
required  by  the  Architect,  file  with  him  two  corrected 
copies  and  furnish  such  copies  as  may  be  needed.  The 
Architect's  approval  of  such  drawings  or  schedules  shall 
not  relieve  the  Contractor  from  responsibility  for  devia- 
tions from  drawings  or  specifications,  unless  he  has  in 
writing  called  the  Architect's  attention  to  such  deviations 
at  the  time  of  submission,  nor  shall  it  relieve  him  from 
responsibility  for  errors  of  any  sort  in  shop  drawings  or 
schedules. 

Art.  6.  Drawings  and  Specifications  on  the  Work. — 
The  Contractor  shall  keep  one  copy  of  all  drawings  and 
specifications  on  the  work,  in  good  order,  available  to  the 
Architect  and  to  his  representatives. 

Art.  7.  Ownership  of  Drawings  and  Models. — All 
drawings,  specifications  and  copies  thereof  furnished  by 
the  Architect  are  his  property.  They  are  not  to  be  used 
on  other  work  and,  with  the  exception  of  the  signed  con- 
tract set,  are  to  be  returned  to  him  on  request,  at  the 
completion  of  the  work.  All  models  are  the  property  of 
the  Owner. 

Art.  8.  Samples. — The  Contractor  shall  furnish  for 
approval  all  samples  as  directed.  The  work  shall  be  in 
strict  accordance  with  approved  samples. 

Art.  p.  The  Architect's  Status. — The  Architect  shall 
have  general  supervision  and  direction  of  the  work.  He 
is  not  the  agent  of  the  Owner,  except  as  provided  in  the 
Contract  Documents  and  when  in  special  instances  he  is 


228        LAW  OF  ARCHITECTURE  AND  BUILDING 

authorized  by  the  Owner  so  to  act,  and  in  such  instances 
he  shall,  upon  request,  show  the  Contractor  written 
authority.  He  has  authority  to  stop  the  work  whenever 
such  stoppage  may  be  necessary  to  insure  the  proper 
execution  of  the  Contract. 

In  case  of  the  termination  of  the  employment  of  the 
Architect,  the  Owner  shall  appoint  a  capable  and  repu- 
table Architect,  whose  status  under  the  contract  shall  be 
that  of  the  former  Architect. 

Art.  10.  The  Architect's  Decisions. — The  Architect 
shall,  within  a  reasonable  time,  make  decisions  on  all 
claims  of  the  Owner  or  Contractor  and  on  all  other  mat- 
ters relating  to  the  execution  and  progress  of  the  work 
or  the  interpretation  of  the  Contract  Documents. 

Except  as  may  be  otherwise  expressly  provided  in  or 
appended  to  these  General  Conditions  or  as  particularly 
set  forth  in  the  specifications,  all  the  Architect's  decisions 
are  subject  to  arbitration. 

Art.  ii.  Foreman,  Supervision. — The  Contractor 
shall  keep  on  the  work  a  competent  general  foreman  and 
any  necessary  assistants,  all  satisfactory  to  the  Archi- 
tect. The  general  foreman  shall  not  be  changed  except 
with  the  consent  of  the  Architect.  The  foreman  shall 
represent  the  Contractor  in  his  absence  and  all  directions 
given  to  him  shall  be  as  binding  as  if  given  to  the  Con- 
tractor. On  written  request  such  directions  shall  be  con- 
firmed in  writing  to  the  Contractor. 

The  Contractor  shall  give  efficient  supervision  to  the 
work,  using  his  best  skill  and  attention.  He  shall  care- 
fully study  and  compare  all  drawings,  specifications  and 
other  instructions  and  shall  at  once  report  to  the  Archi- 
tect any  error,  inconsistency  or  omission  which  he  may 
discover. 

Art.  12.  Materials,  Labor,  Appliances. — Unless  other- 
wise stipulated,  the  Contractor  shall  provide  and  pay  for 
all  materials,  labor,  water,  tools,  equipment,  light  and 
power  necessary  for  the  execution  of  the  work. 


STANDARD  DOCUMENTS  229 

Unless  otherwise  specified,  all  materials  shall  be  new 
and  both  workmanship  and  materials  shall  be  of  good 
quality.  The  Contractor  shall,  if  required,  furnish 
satisfactory  evidence  as  to  the  kind  and  quality  of  ma- 
terials. 

The  Contractor  shall  not  employ  on  the  work  any  unfit 
person  or  anyone  not  skilled  in  the  work  assigned  to  him. 

Art.  13.  Inspection  of  Work. — The  Owner,  the  Ar- 
chitect and  their  representatives  shall  at  all  times  have 
access  to  the  work  wherever  it  is  in  preparation  or  prog- 
ress and  the  Contractor  shall  provide  proper  facilities 
for  such  access  and  for  inspection. 

If  the  specifications,  the  Architect's  instructions,  laws, 
ordinances  or  any  public  authority  require  any  work  to 
be  specially  tested  or  approved,  the  Contractor  shall  give 
the  Architect  timely  notice  of  its  readiness  for  inspection 
and  the  Architect  shall  promptly  inspect  it.  If  any  such 
work  should  be  covered  up  without  approval  or  consent, 
it  must,  if  required  by  the  Architect,  be  uncovered  for 
examination  at  the  Contractor's  expense. 

Re-examination  of  questioned  work  may  be  ordered 
by  the  Architect  and,  if  found  not  in  accordance  with  the 
Contract,  all  expense  of  re-examination  and  replacement 
shall  be  borne  by  the  Contractor,  otherwise  it  shall  be 
allowed  as  extra  work. 

Art.  14.  Correction  of  Work  Before  Final  Payment. 
— The  Contractor  shall  promptly  remove  from  the 
premises  all  materials,  whether  worked  or  unworked,  and 
take  down  and  remove  all  portions  of  the  work  con- 
demned by  the  Architect  as  failing  to  conform  to  the 
Contract ;  and  the  Contractor  shall  promptly  replace  and 
re-execute  his  own  work  in  accordance  with  the  Con- 
tract and  without  expense  to  the  Owner  and  shall  bear 
the  expense  of  making  good  all  work  of  other  con- 
tractors destroyed  or  damaged  by  such  removal  or  re- 
placement. 

If  the  Contractor  does  not  remove  such  condemned 


230        LAW  OF  ARCHITECTURE  AND  BUILDING 

work  and  materials  within  a  reasonable  time,  fixed  by 
written  notice,  the  Owner  may  remove  them  and  may 
store  the  material  at  the  expense  of  the  Contractor.  If 
the  Contractor  does  not  pay  the  expense  of  such  removal 
within  five  days  thereafter,  the  Owner  may,  upon  ten 
days'  written  notice,  sell  such  materials  at  auction  or  at 
private  sale  and  shall  account  for  the  net  proceeds  thereof, 
after  deducting  all  the  costs  and  expenses  that  should 
have  been  borne  by  the  Contractor. 

Art.  75.  Deductions  for  Uncorrected  Work. — If  the 
Architect  deems  it  inexpedient  to  correct  work  injured  or 
not  done  in  accordance  with  the  Contract,  the  difference 
in  value  together  with  a  fair  allowance  for  damage  shall 
be  deducted,  if  acceptable  to  the  Owner. 

Art.  16.  Correction  of  Work  After  Final  Payment. 
— Neither  the  final  certificate  nor  payment  nor  any  pro- 
vision in  the  Contract  Documents  shall  relieve  the  Con- 
tractor of  responsibility  for  negligence  or  faulty  ma- 
terials or  workmanship  within  the  extent  and  period  pro- 
vided by  law  and  upon  written  notice  he  shall  remedy  any 
defects  due  thereto  and  pay  for  any  damage  to  other  work 
resulting  therefrom.  All  questions  arising  under  this 
Article  shall  be  decided  under  Articles  10  and  45. 

Art.  17.  Protection  of  Work  and  Property. — The 
Contractor  shall  continuously  maintain  adequate  protec- 
tion of  all  his  work  from  damage  and  shall  protect  the 
Owner's  and  adjacent  property  from  injury  arising  in 
connection  with  this  Contract.  He  shall  make  good  any 
such  damage  or  injury,  except  such  as  may  be  directly 
due  to  errors  in  the  contract  documents. 

Art.  18.  Emergencies. — In  an  emergency  affecting 
the  safety  of  life  or  of  the  structure  or  of  adjoining 
property,  not  considered  by  the  Contractor  as  within  the 
provisions  of  Article  17,  then  the  Contractor,  without 
special  instruction  or  authorization  from  the  Architect 
or  Owner,  is  hereby  permitted  to  act,  at  his  discretion, 
to  prevent  such  threatened  loss  or  injury  and  he  shall  so 


STANDARD  DOCUMENTS  231 

act,  without  appeal,  if  so  instructed  or  authorized. 
Any  compensation  claimed  to  be  due  to  him  therefor 
shall  be  determined  under  Articles  10  and  45  regardless 
of  the  limitations  in  Article  25  and  in  the  second  para- 
graph of  Article  24. 

Art.  /p.  Damage  to  Persons. — In  addition  to  the 
liability  imposed  by  law  upon  the  Contractor  on  account 
of  bodily  injury  or  death  suffered  through  the  Contrac- 
tor's negligence,  which  liability  is  not  impaired  or  other- 
wise affected  hereby,  the  Contractor  hereby  assumes,  in 
cases  not  embraced  within  such  legal  liability,  the  obliga- 
tion to  save  the  owner  harmless  and  indemnify  him  from 
every  expense,  liability  or  payment  (voluntary  payments 
excepted),  by  reason  of  any  injury  to  any  person  or 
persons,  including  death,  suffered  through  any  act  or 
omission  of  the  Contractor  or  any  Subcontractor,  or  any- 
one directly  or  indirectly  employed  by  either  of  them,  in 
the  prosecution  of  any  work  included  in  this  contract. 

Art.  20.  Liability  Insurance. — The  Contractor  shall 
maintain  such  insurance  as  will  protect  him  from 
claims  under  workmen's  compensation  acts  and  from  any 
other  claims  for  damages  for  personal  injury,  including 
death,  which  may  arise  from  operations  under  this  con- 
tract. Certificates  of  such  insurance  shall  be  filed  with 
the  Owner,  if  he  so  require,  and  shall  be  subject  to  his 
approval  for  adequacy  of  protection.  The  Owner  shall 
be  responsible  for  his  own  contingent  liability. 

Art.  21.  Fire  Insurance. — The  Owner  shall  effect  and 
maintain  fire  insurance  upon  the  entire  structure  on 
which  the  work  of  this  contract  is  to  be  done  and  upon 
all  materials,  tools  and  appliances  in  or  adjacent  there- 
to and  intended  for  use  thereon,  to  at  least  eighty  per 
cent  of  the  insurable  value  thereof.  The  loss,  if  any, 
is  to  be  made  adjustable  with  and  payable  to  the  Owner 
as  Trustee  for  whom  it  may  concern. 

All  policies  shall  be  open  to  inspection  by  the  Con- 
tractor. If  the  Owner  fails  to  show  them  on  request  or 


232        LAW  OF  ARCHITECTURE  AND  BUILDING 

if  he  fails  to  effect  or  maintain  insurance  as  above,  the 
Contractor  may  insure  his  own  interest  and  charge  the 
cost  thereof  to  the  Owner.  If  the  Contractor  is  dam- 
aged by  failure  of  the  Owner  to  maintain  such  insurance, 
he  may  recover  under  Art.  39. 

If  required  in  writing  by  any  party  in  interest,  the 
Owner  as  Trustee  shall,  upon  the  occurrence  of  loss, 
give  bond  for  the  proper  performance  of  his  duties.  He 
shall  deposit  any  money  received  from  insurance  in  an 
account  separate  from  all  his  other  funds  and  he  shall 
distribute  it  in  accordance  with  such  agreement  as  the 
parties  in  interest  may  reach,  or  under  an  award  of  arbi- 
trators appointed,  one  by  the  Owner,  another  by  joint 
action  of  the  other  parties  in  interest,  all  other  pro- 
cedure being  in  accordance  with  Art.  45.  If  after  loss 
no  special  agreement  is  made,  replacement  of  injured 
work  shall  be  ordered  under  Art.  24. 

The  Trustee  shall  have  power  to  adjust  and  settle 
any  loss  with  the  insurers  unless  one  of  the  contractors 
interested  shall  object  in  writing  within  three  working 
days  of  the  occurrence  of  loss  and  thereupon  arbitrators 
shall  be  chosen  as  above.  The  Trustee  shall  in  that  case 
make  settlement  with  the  insurers  in  accordance  with 
the  directions  of  such  arbitrators,  who  shall  also,  if  dis- 
tribution by  arbitration  is  required,  direct  such  distribu- 
tion. 

Art.  22.  Guaranty  Bonds. — The  Owner  shall  have 
the  right  to  require  the  Contractor  to  give  bond  cover- 
ing the  faithful  performance  of  the  contract  and  the 
payment  of  all  obligations  arising  thereunder,  in  such 
form  as  the  Owner  may  prescribe  and  with  such  sureties 
as  he  may  approve.  If  such  bond  is  required  by  in- 
structions given  previous  to  the  receipt  of  bids,  the  pre- 
mium shall  be  paid  by  the  Contractor;  if  subsequent 
thereto,  it  shall  be  paid  by  the  Owner. 

Art.  23.  Cash  Allowances. — The  Contractor  shall  in- 
clude in  the  contract  price  all  allowances  named  in  the 


STANDARD  DOCUMENTS  233 

Contract  Documents  and  shall  cause  the  work  so  cov- 
ered to  be  done  by  such  contractors  and  for  such  sums 
as  the  Architect  may  direct,  the  contract  sum  being  ad- 
justed in  conformity  therewith.  The  Contractor,  in 
making  up  his  bid,  shall  add  such  sums  for  expenses  and 
profit  on  account  of  cash  allowances  as  he  deems  proper 
and  no  demand  for  expenses  or  profit  other  than  those 
included  in  the  contract  sum  shall  be  allowed.  The  Con- 
tractor shall  not  be  required  to  employ  for  any  such  work 
a  Subcontractor  against  whom  he  has  a  reasonable  ob- 
jection. 

Art.  24.  Changes  in  the  Work. — The  Owner,  without 
invalidating  the  contract,  may  make  changes  by  alter- 
ing, adding  to  or  deducting  from  the  work,  the  contract 
sum  being  adjusted  accordingly.  All  such  work  shall  be 
executed  under  the  conditions  of  the  original  contract 
except  that  any  claim  for  extension  of  time  caused 
thereby  shall  be  adjusted  at  the  time  of  ordering  such 
change. 

Except  as  provided  in  Articles  9  and  18,  no  change 
shall  be  made  unless  in  pursuance  of  a  written  order 
from  the  Owner  signed  or  countersigned  by  the  Archi- 
tect and  no  claim  for  an  addition  to  the  contract  sum 
shall  be  valid  unless  so  ordered. 

The  value  of  any  such  change  shall  be  determined  in 
one  or  more  of  the  following  ways : 

(a)  By  Estimate  and  Acceptance  in  a  lump  sum. 

(b)  By  Unit   Prices  named  in  the  contract  or  subse- 

quently agreed  upon. 

(c)  By  Cost  and  Percentage  or  by  Cost  and  a  fixed  fee. 

(d)  If  none  of  the  above  methods  is  agreed  upon,  the 

Contractor,  provided  he  receive  an  order  in  writ- 
ing signed  by  the  Owner  and  countersigned  by  the 
Architect,  shall  proceed  with  the  work,  no  appeal 
to  arbitration  being  allowed  from  such  order  to 
proceed. 
In  cases  (c)  and  (d),  the  Contractor  shall  keep  and 


234       LAW  OF  ARCHITECTURE  AND  BUILDING 

present  in  such  form  as  the  Architect  may  direct,  a  cor- 
rect account  of  the  net  cost  of  labor  and  materials,  to- 
gether with  vouchers.  In  any  case,  the  Architect  shall 
certify  to  the  amount,  including  a  reasonable  profit,  due 
to  the  Contractor.  Pending  final  determination  of  value, 
payments  on  account  of  changes  shall  be  made  on  the 
Architect's  certificate. 

Art.  25.  Claims  for  Extras. — If  the  Contractor 
claims  that  any  instructions,  by  drawings  or  otherwise, 
involve  extra  cost  under  this  contract,  he  shall  give  the 
Architect  written  notice  thereof  before  proceeding  to  exe- 
cute the  work  and,  in  any  event,  within  two  weeks  of 
receiving  such  instructions,  and  the  procedure  shall  then 
be  as  provided  in  the  last  paragraph  of  Art.  24.  No  such 
claim  shall  be  valid  unless  so  made. 

Art.  26.  Applications  for  Payments. — The  Contractor 
shall  submit  to  the  Architect  an  application  for  each  pay- 
ment and,  if  required,  receipts  or  other  vouchers  from 
Subcontractors  showing  his  payments  to  them  for  ma- 
terials and  labor  as  required  by  Article  44. 

If  payments  are  made  on  valuation  of  work  done,  such 
application  shall  be  submitted  at  least  ten  days  before 
each  payment  falls  due.  If  required,  the  Contractor 
shall  before  the  first  application  submit  to  the  Architect 
a  schedule  of  values  of  the  various  parts  of  the  work, 
aggregating  the  total  sum  of  the  contract,  divided  so 
as  to  facilitate  payments  to  subcontractors  in  accordance 
with  Article  44  (e)  made  out  in  such  form  as  the  Archi- 
tect may  direct  and,  if  required,  supported  by  evidence 
as  to  its  correctness.  This  schedule,  when  approved  by 
the  Architect,  shall  be  used  as  a  basis  for  certificates  of 
payment,  unless  it  be  found  to  be  in  error.  In  applying 
for  payments,  the  Contractor  shall  submit  a  statement 
based  upon  this  schedule  and,  if  required,  itemized  in 
such  form  as  the  Architect  may  direct,  showing  his  right 
to  the  payment  claimed. 

Art.  27.     Certificates    and    Payments. — If    the    Con- 


STANDARD  DOCUMENTS  235 

tractor  has  made  application  as  above,  the  Architect  shall, 
not  later  than  the  date  when  each  payment  falls  due,  issue 
to  the  Contractor  a  certificate  for  such  amount  as  he  de- 
cides to  be  properly  due. 

No  certificate  issued  nor  payment  made  to  the  Con- 
tractor, nor  partial  or  entire  use  or  occupancy  of  the 
work  by  the  Owner  shall  be  an  acceptance  of  any  work 
or  materials  not  in  accordance  with  this  contract.  The 
making  and  acceptance  of  the  final  payment  shall  consti- 
tute a  waiver  of  all  claims  by  the  Owner,  otherwise  than 
under  Articles  16  and  29  of  these  conditions  or  under  re- 
quirement of  the  specifications,  and  of  all  claims  by  the 
Contractor,  except  those  previously  made  and  still  un- 
settled. 

Should  the  Owner  fail  to  pay  the  sum  named  in  any 
certificate  of  the  Architect  or  in  any  award  by  arbitra- 
tion, upon  demand  when  due,  the  Contractor  shall  re- 
ceive, in  addition  to  the  sum  named  in  the  certificate, 
interest  thereon  at  the  legal  rate  in  force  at  the  place  of 
building. 

Art.  28.  Payments  Withheld. — The  Architect  may 
withhold  or,  on  account  of  subsequently  discovered  evi- 
dence, nullify  the  whole  or  a  part  of  any  certificate  for 
payment  to  protect  the  Owner  from  loss  on  account  of : 

(a)  Defective  work  not  remedied. 

(b)  Claims  filed  or  reasonable  evidence  indicating  prob- 

able filing  of  claims. 

(c)  Failure  of  the  Contractor  to  make  payments  properly 

to  subcontractors  or  for  material  or  labor. 

(d)  A  reasonable  doubt  that  the  contract  can  be  com- 

pleted for  the  balance  then  unpaid. 

When  all  the  above  grounds  are  removed  certificates 
shall  at  once  be  issued  for  amounts  withheld  because  of 
them. 

Art.  29.  Liens. — Neither  the  final  payment  nor  any 
part  of  the  retained  percentage  shall  become  due  until 
the  Contractor,  if  required,  shall  deliver  to  the  Owner 


236        LAW  OF  ARCHITECTURE  AND  BUILDING 

a  complete  release  of  all  liens  arising  out  of  this  con- 
tract, or  receipts  in  full  in  lieu  thereof  and,  if  required 
in  either  case,  an  affidavit  that  the  releases  and  receipts 
include  all  the  labor  and  material  for  which  a  lien  might 
be  filed ;  but  the  Contractor  may,  if  any  subcontractor  re- 
fuses to  furnish  a  release  or  receipt  in  full,  furnish  a 
bond  satisfactory  to  the  Owner,  to  indemnify  him  against 
any  claim  by  lien  or  otherwise.  If  any  lien  or  claim  re- 
main unsatisfied  after  all  payments  are  made,  the  Con- 
tractor shall  refund  to  the  Owner  all  moneys  that  the  lat- 
ter may  be  compelled  to  pay  in  discharging  such  lien  or 
claim,  including  all  costs  and  a  reasonable  attorney's  fee. 

Art.  30.  Permits  and  Regulations. — The  Contractor 
shall  obtain  and  pay  for  all  permits  and  licenses,  but  not 
permanent  easements,  and  shall  give  all  notices,  pay  all 
fees,  and  comply  with  all  laws,  ordinances,  rules  and  regu- 
lations bearing  on  the  work.  If  the  drawings  and  speci- 
fications are  at  variance  therewith,  the  Contractor  shall 
notify  the  Architect  in  writing  before  the  work  is  per- 
formed and  the  value  of  any  necessary  changes  shall  be 
adjusted  under  Art.  24.  If  any  of  the  Contractor's  work 
shall  be  done  contrary  to  such  laws,  ordinances,  rules,  and 
regulations,  without  such  notice,  he  shall  bear  all  costs 
arising  therefrom. 

Art.  37.  Royalties  and  Patents. — The  Contractor  shall 
pay  all  royalties  and  license  fees  and  shall  defend  all  suits 
or  claims  whatsover  for  infringement  of  any  patent 
rights  and  shall  save  the  Owner  harmless  from  loss  on 
account  thereof. 

Art.  32.  Use  of  Premises. — The  Contractor  shall  con- 
fine his  apparatus,  the  storage  of  materials  and  the  opera- 
tions of  his  workmen  to  limits  indicated  by  law,  ordi- 
nances, permits  or  directions  of  the  Architect  and  shall  not 
encumber  the  premises  with  his  materials. 

The  Contractor  shall  not  load  or  permit  any  part  of 
the  structure  to  be  loaded  with  a  weight  that  will  endanger 
its  safety. 


STANDARD  DOCUMENTS  237 

The  Contractor  shall  enforce  the  Architect's  instruc- 
tions regarding  signs,  advertisements,  fires  and  smoking. 

Art.  55.  Cleaning  Up. — The  Contractor  shall  at  all 
times  keep  the  premises  free  from  accumulations  of 
waste  material  or  rubbish  caused  by  his  employees  or 
work  and  at  the  completion  of  the  work  he  shall  remove 
all  his  rubbish  from  and  about  the  building  and  all  his 
tools,  scaffolding  and  surplus  materials  and  shall  leave 
his  work  clean  and  ready  for  use.  In  case  of  dispute  the 
Owner  may  remove  the  rubbish  and  charge  the  cost  to 
the  several  contractors  as  the  Architect  shall  determine 
to  be  just. 

Art.  34.  Cutting,  Patching  and  Digging. — The  Con- 
tractor shall  do  all  cutting,  fitting  or  patching  of  his 
work  that  may  be  required  to  make  its  several  parts 
come  together  properly  and  fit  it  to  receive  or  be  re- 
ceived by  work  of  other  contractors  shown  upon,  or 
reasonably  implied  by,  the  Drawings  and  Specifications 
for  the  completed  structure  and  he  shall  make  good  after 
them,  as  the  Architect  may  direct. 

Any  cost  caused  by  defective  or  ill-timed  work  shall  be 
borne  by  the  party  responsible  therefor. 

The  Contractor  shall  not  endanger  any  work  by  cutting, 
digging  or  otherwise  and  shall  not  cut  or  alter  the  work 
of  any  other  contractor,  save  with  the  consent  of  the 
Architect. 

Art.  35.  Delays. — If  the  Contractor  is  delayed  in  the 
completion  of  the  work  by  any  act  or  neglect  of  the 
Owner  or  the  Architect,  or  of  any  employee  of  either, 
or  by  any  other  contractor  employed  by  the  Owner,  or 
by  changes  ordered  in  the  work,  or  by  strikes,  lockouts, 
fire,  unavoidable  casualties  or  any  causes  beyond  the  Con- 
tractor's control,  or  by  delay  authorized  by  the  Architect 
pending  arbitration,  or  by  any  cause  which  the  Architect 
shall  decide  to  justify  the  delay,  then  the  time  of  com- 
pletion shall  be  extended  for  such  reasonable  time  as 
the  Architect  may  decide. 


238        LAW  OF  ARCHITECTURE  AND  BUILDING 

No  such  extension  shall  be  made  for  delay  occurring 
more  than  seven  days  before  claim  therefor  is  made  in 
writing  to  the  Architect.  In  the  case  of  a  continuing 
cause  of  delay,  only  one  claim  is  necessary. 

If  no  schedule  is  made  under  Art.  3,  no  claim  for  delay 
shall  be  allowed  on  account  of  failure  to  furnish  draw- 
ings until  two  weeks  after  demand  for  such  drawings  and 
not  then  unless  such  claim  be  reasonable. 

Art.  36.  Owner's  Right  to  Do  Work. — If  the  Con- 
tractor should  neglect  to  prosecute  the  work  properly  or 
fail  to  perform  any  provision  of  this  contract,  the  Owner, 
after  three  days'  written  notice  to  the  Contractor,  may, 
without  prejudice  to  any  other  remedy  he  may  have, 
make  good  such  deficiencies  and  may  deduct  the  cost 
thereof  from  the  payment  then  or  thereafter  due  the 
Contractor;  provided,  however,  that  the  Architect  shall 
approve  both  such  action  and  the  amount  charged  to  the 
Contractor. 

Art.  37.  Owner's  Right  to  Terminate  Contract. — If 
the  Contractor  should  be  adjudged  a  bankrupt,  or  if  he 
should  make  a  general  assignment  for  the  benefit  of 
his  creditors,  or  if  a  receiver  should  be  appointed  on  ac- 
count of  his  insolvency,  or  if  he  should,  except  in  cases 
recited  in  Article  35,  persistently  or  repeatedly  refuse 
or  fail  to  supply  enough  properly  skilled  workmen  or 
proper  materials,  or  if  he  should  fail  to  make  prompt 
payment  to  subcontractors  or  for  material  or  labor,  or 
persistently  disregard  laws,  ordinances  or  the  instructions 
of  the  Architect,  or  otherwise  be  guilty  of  a  substan- 
tial violation  of  any  provisions  of  the  contract,  then  the 
Owner,  upon  the  certificate  of  the  Architect  that  sufficient 
cause  exists  to  justify  such  action,  may,  without  preju- 
dice to  any  other  right  or  remedy  and  after  giving  the 
Contractor  seven  days'  written  notice,  terminate  the  em- 
ployment of  the  Contractor  and  take  possession  of  the 
premises  and  of  all  materials,  tools  and  appliances  thereon 
and  finish  the  work  by  whatever  method  he  may  deem 


STANDARD  DOCUMENTS  239 

expedient.  In  such  case  the  Contractor  shall  not  be  en- 
titled to  receive  any  further  payment  until  the  work  is 
finished.  If  the  unpaid  balance  of  the  contract  price  shall 
exceed  the  expense  of  finishing  the  work,  including  com- 
pensation to  the  Architect  for  his  additional  services,  such 
excess  shall  be  paid  by  the  Contractor.  If  such  expense 
shall  exceed  such  unpaid  balance,  the  Contractor  shall  pay 
the  difference  to  the  Owner.  The  expense  incurred  by 
the  Owner  as  herein  provided,  and  the  damage  incurred 
through  the  Contractor's  default,  shall  be  certified  by  the 
Architect. 

Art.  38.  Contractor's  Right  to  Stop  Work  or  Ter- 
minate Contract. — If  the  work  should  be  stopped  under 
an  order  of  any  court,  for  a  period  of  three  months, 
through  no  act  or  fault  of  the  Contractor  or  of  any  one 
employed  by  him,  or  if  the  Owner  should  fail  to  pay 
to  the  Contractor,  within  seven  days  of  its  maturity  and 
presentation,  any  sum  certified  by  the  Architect  or 
awarded  by  arbitrators,  then  the  Contractor  may,  upon 
three  days'  written  notice  to  the  Owner  and  the  Architect, 
stop  work  or  terminate  this  contract  and  recover  from 
the  Owner  payment  for  all  work  executed  and  any  loss 
sustained  upon  any  plant  or  material  and  reasonable  profit 
and  damages. 

Art.  39.  Damages. — If  either  party  to  this  contract 
should  suffer  damage  by  delay  or  otherwise,  except  as 
provided  in  Art.  40,  because  of  any  act  or  neglect  of 
the  other  party  or  of  any  one  employed  by  him,  then 
he  shall  be  reimbursed  by  the  other  party  for  such  dam- 
age. 

Claims  under  this  clause  shall  be  made  in  writing  to 
the  party  liable  within  a  reasonable  time  of  the  first  ob- 
servance of  such  damage  and  not  later  than  the  time 
of  final  payment,  except  in  case  of  claims  under  Article 
1 6,  and  shall  be  adjusted  by  agreement  or  arbitration. 

Art.  40.  Mutual  Responsibility  of  Contractors. — 
Should  the  Contractor  (see  Art.  I  (c))  cause  damage 


240        LAW  OF  ARCHITECTURE  AND  BUILDING 

to  any  other  person  (see  Art.  i  (e))  employed  on  the 
work,  the  Contractor  agrees,  upon  due  notice,  to  settle 
with  such  person  by  agreement  or  arbitration,  if  such 
person  will  so  settle.  If  such  person  sues  the  Owner  on 
account  of  any  damage  alleged  to  have  been  so  sustained, 
the  Owner  shall  notify  the  Contractor,  who  shall,  at  his 
own  expense,  defend  such  proceedings  and,  if  any  judg- 
ment against  the  Owner  arise  therefrom,  the  Contractor 
shall  pay  or  satisfy  it  and  pay  all  costs  incurred  by  the 
Owner. 

The  Contractor,  if  damaged  by  any  person  held  to  the 
Owner  by  stipulations  such  as  the  above,  agrees  to  set- 
tle with  such  person  by  agreement  or  arbitration  and 
in  no  case  to  sue  the  Owner  on  account  of  such  dam- 
age. 

Art.  41.  Separate  Contracts. — The  Owner  reserves 
the  right  to  let  other  contracts  in  connection  with  this 
work.  The  Contractor  shall  afford  other  contractors 
reasonable  opportunity  for  the  introduction  and  storage 
of  their  materials  and  the  execution  of  their  work  and 
shall  properly  connect  and  coordinate  his  work  with 
theirs. 

If  any  part  of  the  Contractor's  work  depends  for 
proper  execution  or  results  upon  the  work  of  any  other 
contractor,  the  Contractor  shall  inspect  and  promptly 
report  to  the  Architect  any  defects  in  such  work  that 
render  it  unsuitable  for  such  proper  execution  and  re- 
sults. His  failure  so  to  inspect  and  report  shall  consti- 
tute an  acceptance  of  the  other  contractor's  work  as  fit 
and  proper  for  the  reception  of  his  work,  except  as  to 
defects  which  may  develop  in  the  other  contractor's  work 
after  the  execution  of  his  work. 

To  insure  the  proper  execution  of  his  subsequent  work 
the  Contractor  shall  measure  work  already  in  place  and 
shall  at  once  report  to  the  Architect  any  discrepancy  be- 
tween the  executed  work  and  the  drawings. 

Art.  42.     Assignment. — Neither  party  to  the  Contract 


STANDARD  DOCUMENTS  241 

shall  assign  the  contract  without  the  written  consent  of 
the  other,  nor  shall  the  Contractor  assign  any  moneys 
due  or  to  become  due  to  him  hereunder,  without  the 
previous  written  consent  of  the  Owner. 

Art.  43.  Subcontracts. — The  Contractor  shall  notify 
the  Architect  in  writing  of  the  names  of  subcontractors 
proposed  for  the  principal  parts  of  the  work  and  for  such 
others  as  the  Architect  may  direct  and  shall  not  employ 
any  that  the  Architect  may  within  a  reasonable  time  ob- 
ject to  as  incompetent  or  unfit. 

The  Contractor  may  in  his  discretion  or  shall,  if  so 
required,  submit  with  his  proposal,  a  list  of  subcontrac- 
tors. If  the  change  of  any  name  on  such  list  is  required 
or  permitted  after  signature  of  agreement,  the  contract 
price  shall  be  increased  or  diminished  by  the  difference 
between  the  two  bids. 

The  Architect  shall,  on  request,  furnish  to  any  sub- 
contractor, wherever  practicable,  evidence  of  the  amounts 
certified  to  on  his  account. 

The  Contractor  agrees  to  be  fully  responsible  to  the 
Owner  for  the  acts  or  omissions  of  his  subcontractors  and 
of  anyone  employed  either  directly  or  indirectly  by  him 
or  them  and  this  contractual  obligation  shall  be  in  addi- 
tion to  the  liability  imposed  by  law  upon  the  Contractor 
for  bodily  injuries  or  death  through  negligence  in  the 
cases  covered  by  Article  19  hereof. 

Nothing  contained  in  the  Contract  Documents  shall  cre- 
ate any  contractual  relation  between  any  subcontractor 
and  the  Owner. 

Art.  44.  Relations  of  Contractor  and  Subcontractor. 
— The  Contractor  agrees  to  bind  every  subcontractor 
and  every  subcontractor  agrees  to  be  bound,  by  the  terms 
of  the  General  Conditions,  Drawings  and  Specifications, 
as  far  as  applicable  to  his  work,  including  the  following 
provisions  of  this  Article,  unless  specifically  noted  to  the 
contrary  in  a  subcontract  approved  in  writing  as  adequate 
by  the  Owner  or  Architect. 


242        LAW  OF  ARCHITECTURE  AND  BUILDING 

The  Subcontractor  agrees — 

(a)  To  be  bound  to  the  Contractor  by  the  terms  of  the 

General  Conditions,  Drawings  and  Specifications 
and  to  assume  toward  him  all  the  obligations  and 
responsibilities  that  he,  by  those  documents,  as- 
sumes toward  the  Owner. 

(b)  To  submit  to  the  Contractor  applications  for  pay- 

ment in  such  reasonable  time  as  to  enable  the  Con- 
tractor to  apply  for  payment  under  Article  26  of 
the  General  Conditions. 

(c)  To  make  all  claims   for  extras,  for  extensions  of 

time  and  for  damages  for  delays  or  otherwise,  to 
the  Contractor  in  the  manner  provided  in  the  Gen- 
eral Conditions  for  like  claims  by  the  Contractor 
upon  the  Owner,  except  that  the  time  for  making 
claims  for  extra  cost  as  under  Article  25  of  the 
General  Conditions  is  one  week. 

The  Contractor  agrees — 

(d)  To  be  bound  to  the  Subcontractor  by  all  the  obliga- 

tions that  the  Owner  assumes  to  the  Contractor 
under  the  General  Conditions,  Drawings  and  Speci- 
fications and  by  all  the  provisions  thereof  affording 
remedies  and  redress  to  the  Contractor  from  the 
Owner. 

(e)  To  pay  the  Subcontractor,  upon  the  issuance  of  cer- 

tificates, if  issued  under  the  schedule  of  values 
described  in  Article  26  of  the  General  Conditions, 
the  amount  allowed  to  the  Contractor  on  account 
of  the  Subcontractor's  work  to  the  extent  of  the 
Subcontractor's  interest  therein. 

(f)  To  pay  the  Subcontractor,  upon  the  issuance  of  cer- 

tificates, if  issued  otherwise  than  as  in  (e),  so  that 
at  all  times  his  total  payments  shall  be  as  large  in 
proportion  to  the  value  of  the  work  done  by  him 
as  the  total  amount  certified  to  the  Contractor  is  to 
the  value  of  the  work  done  by  him. 

(g)  To  pay  the  Subcontractor  to  such  extent  as  may  be 


STANDARD  DOCUMENTS  243 

provided  by  the  Contract  Documents  or  the  sub- 
contract, if  either  of  these  provides  for  earlier  or 
larger  payments  than  the  above. 

^h)  To  pay  the  Subcontractor  on  demand  for  his  work 
or  materials  as  far  as  executed  and  fixed  in  place, 
less  the  retained  percentage,  at  the  time  the  certifi- 
cate should  issue,  even  though  the  Architect  fails 
to  issue  it  for  any  cause  not  the  fault  of  the  Sub- 
contractor. 

(j)  To  pay  the  Subcontractor  a  just  share  of  any  fire 
insurance  money  received  by  him,  the  Contractor, 
under  Article  21  of  the  General  Conditions. 

(k)  To  make  no  demand  for  liquidated  damages  or 
penalty  for  delay  in  any  sum  in  excess  of  such 
amount  as  may  be  specifically  named  in  the  sub- 
contract. 

(1)  That  no  claim  for  services  rendered  or  materials 
furnished  by  the  Contractor  to  the  Subcontractor 
shall  be  valid  unless  written  notice  thereof  is  given 
by  the  Contractor  to  the  Subcontractor  during  the 
first  ten  days  of  the  calendar  month  following 
that  in  which  the  claim  originated. 

(m)  To  give  the  Subcontractor  an  opportunity  to  be  pres- 
ent and  to  submit  evidence  in  any  arbitration  in- 
volving his  rights. 

(n)  To  name  as  arbitrator  under  Article  45  of  the  Gen- 
eral Conditions  the  person  nominated  by  the  Sub- 
contractor, if  the  sole  cause  of  dispute  is  the  work, 
materials,  rights  or  responsibilities  of  the  Subcon- 
tractor; or,  if  of  the  Subcontractor  and  any  other 
subcontractor  jointly,  to  name  as  such  arbitrator 
the  person  upon  whom  they  agree. 
The  Contractor  and  the  Subcontractor  agree  that — 

(o)  In  the  matter  of  arbitration,  their  rights  and  obliga- 
tions and  all  procedure  shall  be  analogous  to  those 
set  forth  in  Article  45  of  the  General  Conditions. 
Nothing  in  this  Article  shall  create  any  obligation  on 


244       LAW  OF  ARCHITECTURE  AND  BUILDING 

the  part  of  the  Owner  to  pay  to  or  to  see  to  the  payment 
of  any  sums  to  any  Subcontractor. 

Art.  45.  Arbitration. — Subject  to  the  provisions  of 
Article  10,  all  questions  in  dispute  under  this  contract 
shall  be  submitted  to  arbitration  at  the  choice  of  either 
party  to  the  dispute. 

The  general  procedure  shall  conform  to  the  laws  of 
the  State  in  which  the  work  lies  and  wherever  permitted 
by  law  the  decision  of  the  arbitrators  may  be  filed  in 
court  to  carry  it  into  effect. 

The  demand  for  arbitration  shall  be  filed  in  writing  with 
the  Architect,  in  the  case  of  an  appeal  from  his  decision, 
within  ten  days  of  its  receipt  and  in  any  other  case  within 
a  reasonable  time  after  cause  thereof  and  in  no  case  later 
than  the  time  of  final  payment,  except  as  to  questions 
arising  under  Article  16.  If  the  Architect  fails  to  make 
a  decision  within  a  reasonable  time,  an  appeal  to  arbitra- 
tion may  be  taken  as  if  his  decision  had  been  rendered 
against  the  party  appealing. 

The  parties  may  agree  upon  one  arbitrator;  otherwise 
there  shall  be  three,  one  named  in  writing  by  each  party 
and  the  third  chosen  by  these  two  arbitrators  or,  if  they 
fail  to  select  a  third  within  ten  days  he  shall  be  chosen  by 
the  presiding  officer  of  the  nearest  Bar  Association, 
Should  the  party  demanding  arbitration  fail  to  name  an 
arbitrator  within  ten  days  of  his  demand,  his  right  to- 
arbitration  shall  lapse.  Should  the  other  party  fail  to 
choose  an  arbitrator  within  such  ten  days,  the  Architect 
shall  appoint  such  arbitrator.  Should  either  party  refuse 
or  neglect  to  supply  the  arbitrators  with  any  papers  or 
information  demanded  in  writing,  the  arbitrators  are  em- 
powered by  both  parties  to  take  ex  parte  proceedings. 

The  arbitrators  shall  act  with  promptness.  The  deci- 
sion of  any  two  shall  be  binding  on  all  parties  to  the  dis- 
pute. The  decision  of  the  arbitrators  upon  any  question 
subject  to  arbitration  under  this  contract  shall  be  a  condi- 
tion precedent  to  any  right  of  legal  action. 


STANDARD  DOCUMENTS  245 

The  arbitrators,  if  they  deem  that  the  case  demands  it, 
are  authorized  to  award  to  the  party  whose  contention  is 
sustained  such  sums  as  they  shall  deem  proper  for  the 
time,  expense  and  trouble  incident  to  the  appeal  and,  if 
the  appeal  was  taken  without  reasonable  cause,  damages 
for  delay.  The  arbitrators  shall  fix  their  own  compensa- 
tion, unless  otherwise  provided  by  agreement  and  shall 
assess  the  costs  and  charges  of  the  arbitration  upon  either 
or  both  parties. 

The  award  of  the  arbitrators  must  be  in  writing,  and, 
if  in  writing,  shall  not  be  open  to  objection  on  account  of 
the  form  of  the  proceedings  or  the  award. 

THE  STANDARD  FORM  OF  BOND 

ISSUED   BY   THE   AMERICAN    INSTITUTE   OF   ARCHITECTS 

This    form    has   been    approved    by    the    National    Association    of    Builders' 

Exchanges,    The    National    Association    of    Master    Plumbers, 

and    the    National    Association    of    Master    Steam 

and  Hot  Water  Fitters. 

Second   Edition,   Copyright   1915   by   the   American   Institute   of   Architects, 
The  Octagon,  Washington,  D.  C. 


KNOW  ALL  MEN  :  That  we 

(Here  insert  the  name  and  address  or  legal  title  of  the  Contractor.) 

hereinafter  called  the  Principal,  and 

(Here  insert  the  name  and  address  or  legal  title  of  one  or  more  sureties.) 

and 

and 

hereinafter  called  the  Surety  or  Sureties  are  held  and 
firmly  bound  unto 

(Here  insert  the  name  and  address  or  legal  title  of  the  Owner.) 

hereinafter  called  the  Owner,  in  the  sum  of 
($ ) 


246        LAW  OF  ARCHITECTURE  AND  BUILDING 

for  the  payment  whereof  the  Principal  and  the  Surety  or 
Sureties  bind  themselves,  their  heirs,  executors,  adminis- 
trators, successors  and  assigns,  jointly  and  severally, 
firmly,  by  these  presents. 

Whereas,  the  Principal  has,  by  means  of  a  written  Agree- 
ment dated 

. .  entered  into  a  contract  with  the  Owner  for 


a  copy  of  which  Agreement  is  by  reference  made  a  part 
hereof ; 

Now,  Therefore,  the  Condition  of  this  Obligation  is  such 
that  if  the  Principal  shall  faithfully  perform  the  Contract 
on  his  part,  and  satisfy  all  claims  and  demands,  incurred 
for  the  same,  and  shall  fully  indemnify  and  save  harmless 
the  Owner  from  all  cost  and  damage  which  he  may  suffer 
by  reason  of  failure  so  to  do,  and  shall  fully  reimburse 
and  repay  the  Owner  all  outlay  and  expense  which  the 
Owner  may  incur  in  making  good  any  such  default,  and 
shall  pay  all  persons  who  have  contracts  directly  with  the 
Principal  for  labor  or  materials,  then  this  obligation  shall 
be  null  and  void;  otherwise  it  shall  remain  in  full  force 
and  effect. 

Provided,  however,  that  no  suit,  action  or  proceeding  by 
reason  of  any  default  whatever  shall  be  brought  on  this 

Bond  after months  from  the  day  on  which 

the  final  payment  under  the  Contract  falls  due. 
And  Provided,  that  any  alterations  which  may  be  made 
in  the  terms  of  the  Contract,  or  in  the  work  to  be  done 
under  it,  or  the  giving  by  the  Owner  of  any  extension  of 
time  for  the  performance  of  the  Contract,  or  any  other 
forbearance  on  the  part  of  either  the  Owner  or  the 
Principal  to  the  other  shall  not  in  any  way  release  the 
Principal  and  the  Surety  or  Sureties,  or  either  or  any 
of  them,  their  heirs,  executors,  administrators,  successors 
or  assigns  from  their  liability  hereunder,  notice  to  the 


STANDARD  DOCUMENTS  247 

Surety  or  Sureties  of  any  such  alteration,  extension  or 
forbearance  being  hereby  waived. 

Signed  and  Sealed  this day  of 19. . . . 

In  Presence  of 


(SEAL) 

as  to 

(SEAL) 

•as  to 

.  .  (SEAL) 

-as  to 

.  .  (SEAL) 

-as  to 

THE  STANDARD  FORM  OF  SUBCONTRACT 

For    use    in    connection    with    the    General    Conditions    of    the    Contract    as 

issued  by  the  American  Institute  of  Architects. 

This    form    has    been    approved    by    the    National    Association    of    Builders' 

Exchanges,    The    National    Association    of    Master    Plumbers, 

and    the    National    Association    of    Master    Steam 

and  Hot  Water  Fitters. 

Copyright   1915  by  the  American  Institute  of  Architects,  The  Octagon, 
Washington,  D.   C. 

THIS  AGREEMENT,  made  this        day  of 
19       by  and  between  hereinafter  called 

the  Subcontractor  and 
hereinafter  called  the  Contractor. 

WITNESSETH,  That  the  Subcontractor  and  Con- 
tractor for  the  considerations  hereinafter  named  agree  as 
follows : 

Section  i.  The  Subcontractor  agrees  to  furnish  all 
material  and  perform  all  work  as  described  in  Section  2 
hereof  for 

(Here  name  the  kind  of  building.) 

for 

(Here  insert  the  name  of  the  Owner.) 

hereinafter  called  the  Owner,  at 

(Here  insert  the  location  of  the  work.) 


248        LAW  OF  ARCHITECTURE  AND  BUILDING 

in  accordance  with  the  General  Conditions  of  the  Con- 
tract between  the  Owner  and  the  Contractor,  and  in  ac- 
cordance with  the  Drawings  and  the  Specifications  pre- 
pared by  hereinafter  called 
the  Architect,  all  of  which  General  Conditions,  Drawings 
and  Specifications  signed  by  the  parties  hereto  or  identi- 
fied by  the  Architect,  form  a  part  of  a  Contract  between 
the  Contractor  and  the  Owner  dated  ,  19 
and  hereby  become  a  part  of  this  Contract. 

Section  2.  The  Subcontractor  and  the  Contractor 
agree  that  the  materials  to  be  furnished  and  work  to  be 
done  by  the  Subcontractor  are 

(Here  insert  a  precise  description  of  the  work,  preferably  by  reference  to 
the  numbers  of  the  Drawings  and  the  pages  of  the  Specifications.) 

Section  j.  The  Subcontractor  agrees  to  complete  the 
several  portions  and  the  whole  of  the  work  herein  sublet 
by  the  time  or  times  following : 

(Here   insert  the  date   or  dates  and   if  there  be  liquidated  damages   state 

them.) 


Section  4.  The  Contractor  agrees  to  pay  the  Subcon- 
tractor for  the  performance  of  his  work  the  sum  of 

($  ) 

in  current  funds,  subject  to  additions  and  deductions  for 
changes  as  may  be  agreed  upon,  and  to  make  payments  on 
account  thereof  in  accordance  with  Section  5  hereof. 

Section  5.  The  Contractor  and  Subcontractor  agree  to 
be  bound  by  the  terms  of  the  General  Conditions,  Draw- 
ings and  Specifications  as  far  as  applicable  to  this  sub- 
contract, including  the  provisions  of  Article  44  of  the 
General  Conditions  of  the  Contract,  as  follows : 

The  Subcontractor  agrees : 

(a)  To  be  bound  to  the  Contractor  by  the  terms  of  the  General 
Conditions,  Drawings  and  Specifications,  and  to  assume  toward 
him  all  the  obligations  and  responsibilities  that  he,  by  those  docu- 
ments, assumes  toward  the  Owner. 


STANDARD  DOCUMENTS  249 

(&)  To  submit  to  the  Contractor  applications  for  payment  in 
such  reasonable  time  as  to  enable  the  Contractor  to  apply  for 
payment  under  Article  26  of  the  General  Conditions. 

(c)  To  make  all  claims  for  extras,  for  extensions  of  time  and 
for  damages  for  delays  or  otherwise,  to  the  Contractor  in  the 
manner  provided  in  the  General  Conditions  for  like  claims  by  the 
Contractor  upon  the  Owner,   except  that  the  time   for  making 
claims  for  extra  cost  as  under  Article  25  of  the  General  Condi- 
tions, is  one  week. 

The  Contractor  agrees : 

(d)  To  be  bound  to  the  Subcontractor  by  all  the  obligations 
that  the  Owner  assumes  to  the   Contractor  under  the  General 
Conditions,  Drawings  and  Specifications,  and  by  all  the  provi- 
sions thereof  affording  remedies  and  redress  to  the  Contractor 
from  the  Owner. 

(e)  To  pay  the  Subcontractor,  upon  the  issuance  of  certificates, 
if  issued  under  the  schedule  of  values  described  in  Article  26  of 
the  General   Conditions,  the  amount  allowed  to  the  Contractor 
on  account  of  the  Subcontractor's  work  to  the  extent  of  the  Sub- 
contractor's interest  therein. 

(f)  To  pay  the  Subcontractor,  upon  the  issuance  of  certificates, 
if  issued  otherwise  than  as  in  (e),  so  that  at  all  times  his  total 
payments  shall  be  as  large  in  proportion  to  the  value  of  the  work 
done  by  him  as  the  total  amount  certified  to  the  Contractor  is 
to  the  value  of  the  work  done  by  him. 

(#)  To  pay  the  Subcontractor  to  such  extent  as  may  be  pro- 
vided by  the  Contract  Documents  or  the  Subcontract,  if  either 
of  these  provides  for  earlier  or  larger  payments  than  the  above. 

(/O  To  pay  the  Subcontractor  on  demand  for  his  work  or  ma- 
terials as  far  as  executed  and  fixed  in  place,  less  the  retained 
percentage,  at  the  time  the  certificate  should  issue,  even  though 
the  Architect  fails  to  issue  it  for  any  cause  not  the  fault  of  the 
Subcontractor. 

(/)  To  pay  the  Subcontractor  a  just  share  of  any  fire  insur- 
ance money  received  by  him,  the  Contractor,  under  Article  21 
of  the  General  Conditions. 

(&)  To  make  no  demand  for  liquidated  damages  or  penalty 
for  delay  in  any  sum  in  excess  of  such  amount  as  may  be  specific- 
ally named  in  the  Subcontract. 

(/)  That  no  claim  for  services  rendered  or  materials  furnished 
by  the  Contractor  to  the  Subcontractor  shall  be  valid  unless  writ- 
ten notice  thereof  is  given  by  the  Contractor  to  the  Subcontractor 
during  the  first  ten  days  of  the  calendar  month  following  that  in 
which  the  claim  originated. 


250        LAW  OF  ARCHITECTURE  AND  BUILDING 

(tw)  To  give  the  Subcontractor  an  opportunity  to  be  present 
and  to  submit  evidence  in  any  arbitration  involving  his  rights. 

(w)  To  name  as  arbitrator  under  Article  45  of  the  General  Con- 
ditions, the  person  nominated  by  the  Subcontractor  if  the  sole 
cause  of  dispute  is  the  work,  materials,  rights  or  responsibilities 
of  the  Subcontractor;  or,  if  of  the  Subcontractor  and  any  other 
Subcontractor  jointly,  to  name  as  such  arbitrator  the  person  upon 
whom  they  agree. 

The  Contractor  and  the  Subcontractor  agree  that: 

(0)  In  the  matter  of  arbitration  their  rights  and  obligations 
and  all  procedure  shall  be  analogous  to  those  set  forth  in  Article 
45  of  the  General  Conditions. 

Nothing  in  this  Article  shall  create  any  obligation  on  the  part 
of  the  Owner  to  pay  to  or  to  see  to  the  payment  of  any  sums  to 
any  Subcontractor. 

Section  6. 

Finally. — The  Subcontractor  and  Contractor,  for  them- 
selves, their  heirs,  successors,  executors,  administrators 
and  assigns,  do  hereby  agree  to  the  full  performance  of 
the  covenants  herein  contained. 

IN  WITNESS  WHEREOF  they  have  hereunto  set  their 
hands  the  day  and  date  first  above  written. 

In  Presence  of 


Subcontractor. 
Contractor. 

STANDARD  FORM  OF  ACCEPTANCE  OF 
SUBCONTRACTOR'S  PROPOSAL 


For    use    in    connection    with    the    Standard    Documents    of    the   American 
Institute  of  Architects. 

This    form    has   been    approved    by    the    National    Association    of   Builders' 

Exchanges,    The    National    Association    of    Master    Plumbers, 

and    the    National    Association    of   Master    Steam 

and  Hot  Water  Fitters. 

Copyright    1915    by    the    American    Institute    of    Architects,    The    Octagon, 
Washington,  D.  C. 

DEAR  SIR  :     Having  entered  into  a  contract  with 

(Here  insert  the  name  and  address  or  corporate  title  of  the  Owner.) 


STANDARD  DOCUMENTS  251 

for  the  erection  of 

(Here  insert  the  kind  of  work  and  the  place  at  which  it  is  to  be  erected.) 

in  accordance  with  plans  and  specifications  prepared  by 

(Here  insert  the  name  and  address  of  the  Architect) 

and  in  accordance  with  the  General  Conditions  of  the 
Contract  prefixed  to  the  specifications,  the  undersigned 
hereby  accepts  your  proposal  of 

(Here    insert    date.) 

to  provide  all  the  materials  and  do  all  the  work  of 

(Here    insert    the    kind    of   work    to    be   done,    as    plumbing,    roofing,    etc., 

accurately  describing  by  number,  page,  etc.,  the  drawings  and 

specifications   governing   such   work.) 

The  Undersigned  agrees  to  pay  you  in  current  funds 
for  the  faithful  performance  of  the  subcontract  established 
by  this  acceptance  of  your  proposal  the  sum  of 

($  ) 

Our  relations  in  respect  of  this  subcontract  are  to  be 
governed  by  the  plans  and  specifications  named  above,  by 
the  General  Conditions  of  the  Contract  as  far  as  applica- 
ble to  the  work  thus  sublet  and  especially  by  Article  44  of 
those  conditions  printed  on  the  reverse  hereof. 
Very  truly  yours, 


AUTHORITY  TO  EXECUTE  A  CONTRACT 
OR  BOND 

When  the  Contractor,  the  Owner  or  the  Surety  is  a 
corporation,  it  is  important  that  any  Agreement  or  Bond 
executed  by  such  corporation  should  be  accompanied  by  a 
certificate,  such  as  the  following,  showing  that  power  so 
to  sign  is  duly  vested  in  those  signing : 

"At  a  meeting  of  the  Board  of  Directors  of  the 

duly  notified  and  held  in 

on ,  /p .  . . ,  a  quorum  being  present  it  was 


252        LAW  OF  ARCHITECTURE  AND  BUILDING 

VOTED  :  That the 

be  and  he  is  hereby  authorized  and  directed  in  the  name 
and  behalf  of  this  Corporation,  and  under  its  corporate 

seal,  to  execute  and  deliver  a  contract  with 

for  a at 

for  the  sum  of  $ ; 

said  contract  to  be  in  such  form  and  subject  to  such  con- 
ditions as  said shall  see  fit. 

And  said is  hereby  further 

authorised  and  directed  in  the  name  and  behalf  of  this 

Corporation  and  under  its  corporate  seal,  to  execute  and 

deliver  to  said  Owner  any  bond  or  bonds  he  may  see  fit 

for  the  performance  of  said  contract  by  this  Corporation. 

A  True  Copy. 

Attest:        Secretary. 

The  same  form,  with  omission  of  last  sentence,  applies 
to  the  Owner. 


FORM  OF  INVITATION  TO  SUBMIT  A 
PROPOSAL 

DEAR  SIR:  You  are  invited  to  submit  a  proposal  for 

Drawings,  Specifications  and  other 

information  may  be  procured  from  this  office  on  and  after 

All  documents  must  be  returned 

to  this  office  not  later  than 

To  be  entitled  to  consideration  the  proposal  must  be 
made  upon  the  form  provided  by  the  Architect,  which 
must  be  fully  completed  in  accordance  with  the  accom- 
panying "Instructions  to  Bidders"  and  must  be  delivered 

to  this  office  not  later  than 

Very  truly  yours, 


STANDARD  DOCUMENTS  253 

FORM  OF  INSTRUCTIONS  TO  BIDDERS 

Proposals,  to  be  entitled  to  consideration,  must  be  made 
in  accordance  with  the  following  instructions : 

Proposals  shall  be  made  upon  the  form  provided  there- 
for, and  all  blank  spaces  in  the  form  shall  be  fully  filled ; 
numbers  shall  be  stated  both  in  writing  and  in  figures; 
the  signature  shall  be  in  long  hand;  and  the  completed 
form  shall  be  without  interlineation,  alteration  or  erasure. 

Proposals  shall  not  contain  any  recapitulation  of  the 
work  to  be  done.  No  oral,  telegraphic  or  telephonic  pro- 
posals or  modifications  will  be  considered. 

Proposals  shall  be  addressed  to  the  Owner,  in  care  of 
the  Architect,  and  shall  be  delivered  to  the  Architect 
enclosed  in  an  opaque  sealed  envelope  addressed  to  him, 
marked  "Proposal"  and  bearing  the  title  of  the  work  and 
the  name  of  the  Bidder. 

Should  a  bidder  find  discrepancies  in,  or  omissions 
from,  the  drawings  or  documents,  or  should  he  be  in  doubt 
as  to  their  meaning,  he  should  at  once  notify  the  Archi- 
tect, who  will  send  a  written  instruction  to  all  bidders. 
Neither  Owner  nor  Architect  will  be  responsible  for  any 
oral  instructions. 

Before  submitting  a  proposal,  bidders  should  carefully 
examine  the  drawings  and  specifications,  visit  the  site  or 
work,  fully  inform  themselves  as  to  all  existing  conditions 
and  limitations  and  shall  include  in  the  Proposal  a  sum 
to  cover  the  cost  of  all  items  included  in  the  Contract. 

The  competency  and  responsibility  of  bidders  and  of 
their  proposed  subcontractors  will  be  considered  in  making 
the  award.  The  Owner  does  not  obligate  himself  to 
accept  the  lowest  or  any  other  bid. 

Provision  will  be  made  in  the  Agreement  for  payments 
on  account  in  the  following  words :  (Insert  the  provision). 

Any  Bulletins  issued  during  the  time  of  bidding  are  to 
be  covered  in  the  proposal  and  in  closing  a  contract  they 
will  become  a  part  thereof. 


254        LAW  OF  ARCHITECTURE  AND  BUILDING 
FORM  OF  PROPOSAL 

(The  Proposal  should  be  dated  and  addressed  to  the  Owner  in  care  of  the 
Architect.) 

DEAR  SIR:  Having  carefully  examined  the  Instruc- 
tions to  Bidders,  the  General  Conditions  of  the  Contract 
and  Specifications  entitled 

(Here  insert  the  caption  descriptive  of  the  work  as  used  therein.) 

and  the  Drawings,  similarly  entitled,  numbered 

as  well  as  the  premises  and  the  conditions  affecting  the 
work,  the  Undersigned  proposes  to  furnish  all  materials 
and  labor  called  for  by  them  for 

(Here  insert,  in  case  all  the  work  therein  described  is  to  be  covered 
by  one  contract,  "the  entire  work."  In  case  of  a  partial  contract  insert 
name  of  the  trade  or  trades  to  be  covered  and  the  numbers  of  the  pages 
of  the  Specifications  on  which  the  work  is  described.) 

in  accordance  with  the  said  documents  for  the  sum  of 

Dollars  ($ )  and  to  execute  a 

contract  for  the  above  work,  for  the  above  stated  com- 
pensation in  the  form  of  the  Standard  Agreement  of  the 
American  Institute  of  Architects  (second  edition),  pro- 
vided that  he  be  notified  of  the  acceptance  of  this  pro- 
posal within  days  of  the  time  set  for  the 

submission  of  bids. 

Very  truly  yours, 


SUGGESTIONS   TO   ARCHITECTS    USING  THE   ABOVE   FORM    OF 
PROPOSAL 

The  above  form  includes  only  such  statements  as  will 
probably  be  required  in  any  Proposal.  Additions  will 
usually  have  to  be  made  to  it.  Suggestions  suited  to  cer- 
tain conditions  are  offered  in  the  following  notes. 

If  the  Bidder  is  to  name  the  time  required  for  com- 
pleting the  work,  insert  such  a  clause  as  the  following : 

The  Undersigned  agrees,  if  awarded  the  Contract,  to 

complete  it  within days,  Sundays  and  whole 

holidays  not  included. 


STANDARD  DOCUMENTS  255 

If  liquidated  damages  are  to  be  required,  insert  the 
following : 

And  further  agrees  that,  from  the  compensation  other- 
wise to  be  paid,  the  Owner  may  retain  the  sum  of 

dollars  ($ )  for  each  day  thereafter,  Sundays  and 

whole  holidays  not  included,  that  the  work  remains  un- 
completed, which  sum  is  agreed  upon  as  the  proper  meas- 
ure of  liquidated  damages  which  the  Owner  will  sustain 
per  diem  by  the  failure  of  the  undersigned  to  complete 
the  work  at  the  time  stipulated,  and  this  sum  is  not  to  be 
construed  as  in  any  sense  a  penalty. 

If  a  bond  is  required,  insert  the  following: 

The  Undersigned  agrees,  if  awarded  the  Contract,  to 

execute  and  deliver  to  the  Architect  within days 

after  the  signing  of  the  Contract,  a  satisfactory  bond  in 
the  form  issued  by  the  American  Institute  of  Architects 

(second  edition)  and  in  the  sum  of ,  extending 

from  the  time  of  signature  for months  from  the 

day  on  which  the  final  payment  under  the  contract  falls 
due,  and  further  agrees  that  if  such  bond  be  not  required, 

he  will  deduct  from  the  proposal  price  the  sum  of 

dollars  ($ ). 

If  a  certified  check  is  required,  the  following  clause 
should  be  inserted : 

The  Undersigned  further  agrees  that  the  certified  check 

payable  to Owner,  accompanying  this 

proposal,  is  left  in  escrow  with  the  Architect;  that  its 
amount  is  the  measure  of  liquidated  damages  which  the 
Owner  will  sustain  by  the  failure  of  the  Undersigned  to 
execute  and  deliver  the  above  named  Agreement  and 
bond,  and  that  if  the  Undersigned  defaults  in  executing 
that  Agreement  within days  of  written  notifi- 
cation of  the  award  of  the  contract  to  him  or  in  furnish- 
ing the  Bond  within days  thereafter,  then  the 

check  shall  become  the  property  of  the  Owner,  but  if  this 

proposal  is  not  accepted  within days  of  the 

time  set  for  the  submission  of  bids,  or  if  the  Undersigned 


256        LAW  OF  ARCHITECTURE  AND  BUILDING 

executes  and  delivers  said  Contract  and  Bond,  the  check 
shall  be  returned  to  him  on  receipt  therefor. 

If  alternative  proposals  are  required,  they  should  be 
set  forth,  as  for  example, 

Should be  substituted  for 

the  Undersigned  agrees  to  deduct  (or  will  require  the  ad- 
dition of) dollars  ($ )  from  (or  to) 

the  proposed  sum. 

If  unit  prices  are  required  as  a  part  of  the  proposal, 
they  should  be  set  forth  as,  for  example : 

The  Undersigned  agrees  that  work  added  shall  be  com- 
puted at  the  following  prices,  and  that  work  omitted  shall 

be  computed  at per  cent  less  than  these  prices. 

Concrete  foundations per  cubic  yard, 

Rough  brickwork per  thousand, 

Plastering per  yard. 

If  the  names  of  subcontractors  whom  the  Contractor 
proposes  to  employ  are  required  as  a  part  of  the  Proposal 
this  requirement  should  be  set  forth,  as,  for  example : 

In  case  of  obtaining  the  award  the  Undersigned  will 
employ,  subject  to  the  Architect's  approval,  subcontractors 
in  each  of  the  several  trades  selected  from  the  following 
list  (one  or  more  names  must  be  inserted  for  each  trade) : 

Excavation 

Stone  Masonry 

Brickwork 

etc.,  etc. 


(Published   by    special   permission   and   courtesy   of   the  American   Institute 
of  Architects.) 

THE  AMERICAN,  INSTITUTE  OF  ARCHITECTS 


PROFESSIONAL    PRACTICE    OF    ARCHITECTS 
SCHEDULE   OF   PROPER    MINIMUM    CHARGES 


1.  The  architect's  professional  services  consist  of  the 
necessary   conferences,   the  preparation   of   preliminary 
studies,  working  drawings,  specifications,  large  scale  and 
full  size  detail  drawings,  and  of  the  general  direction  and 
supervision  of  the  work,  for  which,  except  as  hereinafter 
mentioned,  the  minimum  charge,  based  upon  the  total 
cost  *  of  the  work  complete  is  six  per  cent. 

2.  On  residential  work,  alterations  to  existing  build- 
ings, monuments,  furniture,  decorative  and  cabinet  work 
and  landscape  architecture,  it  is  proper  to  make  a  higher 
charge  than  above  indicated. 

3.  The  architect  is  entitled  to  compensation  for  articles 
purchased  under  his  direction,  even  though  not  designed 
by  him. 

4.  If  an  operation  is  conducted  under  separate  con- 
tracts, rather  than  under  a  general  contract,  it  is  proper 
to  charge  a  special  fee  in  addition  to  the  charges  men- 
tioned elsewhere  in  this  schedule. 

5.  Where  the  architect  is  not  otherwise  retained,  con- 
sultation fees  for  professional  advice  are  to  be  paid  in 

*  The  total  cost  is  to  be  interpreted  as  the  cost  of  all  materials 
and  labor  necessary  to  complete  the  work,  plus  contractors'  profits 
and  expenses,  as  such  cost  would  be  if  all  materials  were  new 
and  all  labor  fully  paid,  at  market  prices  current  when  the  work 
was  ordered. 

257 


258        LAW  OF  ARCHITECTURE  AND  BUILDING 

proportion  to  the  importance  of  the  question  involved 
and  services  rendered. 

6.  Where  heating,  ventilating,  mechanical,  structural, 
electrical  and  sanitary  problems  are  of  such  a  nature 
as  to  require  the  services  of  a  specialist,  the  owner  is  to 
pay  for  such  services.     Chemical  and  mechanical  tests 
and  surveys,  when  required,  are  to  be  paid  for  by  the 
owner. 

7.  Necessary  traveling  expenses  are  to  be  paid  by  the 
owner. 

8.  If,    after   a    definite    scheme   has   been   approved, 
changes  in  drawings,  specifications  or  other  documents 
are  required  by  the  owner;  or  if  the  architect  be  put  to 
extra  labor  or  expense  by  the  delinquency  or  insolvency 
of  a  contractor,  the  architect  shall  be  paid  for  such  addi- 
tional services  and  expense. 

9.  Payments  to  the  architect  are  due  as  his  work  pro- 
gresses in  the  following  order:     Upon  completion  of  the 
preliminary   studies,   one-fifth  of  the  entire   fee;   upon 
completion  of  specifications  and  general  working  draw- 
ings (exclusive  of  details),  two-fifths  additional,  the  re- 
mainder being  due  from  time  to  time  in  proportion  to  the 
amount  of  service  rendered.     Until  an  actual  estimate  is 
received,  charges  are  based  upon  the  proposed  cost  of 
the  work  and  payments  received  are  on  account  of  the 
entire  fee. 

10.  In  case  of  the  abandonment  or  suspension  of  the 
work,  the  basis  of  settlement  is  to  be  as  follows:     For 
preliminary  studies,  a  fee  in  accordance  with  the  charac- 
ter and  magnitude  of  the  work ;  for  preliminary  studies, 
specifications  and  general  working  drawings   (exclusive 
of  details),  three-fifths  of  the  fee  for  complete  services. 

11.  The  supervision  of  an  architect  (as  distinguished 
from    the    continuous    personal    superintendence    which 
may  be  secured  by  the  employment  of  a  clerk-of-the- 
works  or  superintendent  of  construction)  means  such  in- 
spection by  the  architect  or  his  deputy,  of  work  in  stu- 


PRACTICE  AND  CHARGES  OF  A.  I.  A.  259 

dios  and  shops  or  a  building  or  other  work  in  process 
of  erection,  completion  or  alteration,  as  he  finds  necessary 
to  ascertain  whether  it  is  being  executed  in  general  con- 
formity with  his  drawings  and  specifications  or  direc- 
tions. He  has  authority  to  reject  any  part  of  the  work 
which  does  not  so  conform  and  to  order  its  removal  and 
reconstruction.  He  has  authority  to  act  in  emergencies 
that  may  arise  in  the  course  of  construction,  to  order 
necessary  changes,  and  to  define  the  intent  and  meaning 
of  the  drawings  and  specifications.  On  operations  where 
a  clerk-of -the- works  or  superintendent  of  construction  is 
required,  the  architect  shall  employ  such  assistance  at  the 
owner's  expense. 

12.  Drawings    and    specifications,    as    instruments    of 
service,  are  the  property  of  the  architect. 

As  revised  at  the  Washington  Convention,  December 
15-17,  1908. 

OFFICE  OF  THE  Secretary, 
The  Octagon,  Washington,  D.  C. 
February,  1914 


APPENDIX  D 

A.  I.  A.  Document  107 

(Published   by   special   permission   and   courtesy   of   the   American   Institute 
of  Architects.) 

A  CIRCULAR  OF  ADVICE 
RELATIVE  TO  PRINCIPLES  OF  PROFESSIONAL  PRACTICE 

THE  CANONS  OF  ETHICS 

THE   AMERICAN    INSTITUTE  OF   ARCHITECTS 

Office  of  the  Secretary,  TEe  Octagon,  Washington,  D.  C.,  February,  1915. 

A   CIRCULAR   OF   ADVICE 

THE  AMERICAN  INSTITUTE  OF  ARCHITECTS,  seeking  to 
maintain  a  high  standard  of  practice  and  conduct  on  the 
part  of  its  members  as  a  safeguard  of  the  important 
financial,  technical  and  esthetic  interests  entrusted  to 
them,  offers  the  following  advice  relative  to  professional 
practice : 

The  profession  of  architecture  calls  for  men  of  the 
highest  integrity,  business  capacity  and  artistic  ability. 
The  architect  is  entrusted  with  financial  undertakings  in 
which  his  honesty  of  purpose  must  be  above  suspicion; 
he  acts  as  professional  adviser  to  his  client  and  his  advice 
must  be  absolutely  disinterested ;  he  is  charged  with  the 
exercise  of  judicial  functions  as  between  client  and  con- 
tractors and  must  act  with  entire  impartiality;  he  has 
moral  responsibilities  to  his  professional  associates  and 
subordinates ;  finally,  he  is  engaged  in  a  profession  which 
carries  with  it  grave  responsibility  to  the  public.  These 
duties  and  responsibilities  cannot  be  properly  discharged 
unless  his  motives,  conduct  and  ability  are  such  as  to  com- 
mand respect  and  confidence. 

No  set  of  rules  can  be  framed  which  will  particularize 
260 


CIRCULAR  OF  ADVICE  A,  I.  A.  261 

all  the  duties  of  the  architect  in  his  various  relations  to 
his  clients,  to  contractors,  to  his  professional  brethren, 
and  to  the  public.  The  following  principles  should,  how- 
ever, govern  the  conduct  of  members  of  the  profession 
and  should  serve  as  a  guide  in  circumstances  other  than 
those  enumerated. 

1.  On  the  Architect's  Status. — The  architect's  relation 
to  his  client  is  primarily  that  of  professional  adviser ;  this 
relation  continues  throughout  the  entire  course  of  his 
service.     When,  however,  a  contract  has  been  executed 
between  his  client  and  a  contractor  by  the  terms  of  which 
the  architect  becomes  the  official  interpreter  of  its  condi- 
tions and  the  judge  of  its  performance,  an  additional  rela- 
tion is  created  under  which  it  is  incumbent  upon  the 
architect  to  side  neither  with  client  nor  contractor,  but  to 
use  his  powers  under  the  contract  to  enforce  its  faithful 
performance  by  both  parties.     The  fact  that  the  architect's 
payment  comes  from  the  client  does  not  invalidate  his 
obligation  to  act  with  impartiality  to  both  parties. 

2.  On  Preliminary  Drawings  and  Estimates. — The  ar- 
chitect at  the  outset  should  impress  upon  the  client  the 
importance  of  sufficient  time  for  the  preparation  of  draw- 
ings and  specifications.     It  is  the  duty  of  the  architect  to 
make  or  secure  preliminary  estimates  when  requested,  but 
he  should  acquaint  the  client  with  their  conditional  char- 
acter and  inform  him  that  complete  and  final  figures  can 
be  had  only  from  complete  and  final  drawings  and  specifi- 
cations.    If  an  unconditional  limit  of  cost  be  imposed  be- 
fore such  drawings  are  made  and  estimated,  the  architect 
must  be  free  to  make  such  adjustments  as  seem  to  him 
necessary.     Since   the   architect    should   assume   no   re- 
sponsibility that  may  prevent  him  from  giving  his  client 
disinterested  advice,  he  should  not,  by  bond  or  otherwise, 
guarantee  any  estimate  or  contract. 

j.  On  Superintendence  and  Expert  Services. — On  all 
work  except  the  simplest,  it  is  to  the  interest  of  the  owner 
to  employ  a  superintendent  or  clerk  of  the  works.  In 


262        LAW  OF  ARCHITECTURE  AND  BUILDING 

many  engineering  problems  and  in  certain  specialized 
esthetic  problems,  it  is  to  his  interest  to  have  the  services 
of  special  experts  and  the  architect  should  so  inform  him. 
The  experience  and  special  knowledge  of  the  architect 
make  it  to  the  advantage  of  the  owner  that  these  persons, 
although  paid  by  the  owner  should  be  selected  by  the  ar- 
chitect under  whose  direction  they  are  to  work. 

4.  On    the    Architect's    Charges. — The    Schedule    of 
Charges  of  the  American  Institute  of  Architects  is  recog- 
nized as  a  proper  minimum  of  payment.    The  locality  or 
the  nature  of  the  work,  the  quality  of  services  to  be 
rendered,  the  skill  of  the  practitioner  or  other  circum- 
stances frequently  justify  a  higher  charge  than  that  indi- 
cated by  the  Schedule. 

5.  On  Payment  for  Expert  Service. — The   architect 
when  retained  as  an  expert,  whether  in  connection  with 
competitions  or  otherwise,  should  receive  a  compensation 
proportionate  to  the  responsibility  and  difficulty  of  the 
service.     No  duty  of  the  architect  is  more  exacting  than 
such  service,  and  the  honor  of  the  profession  is  involved 
in  it.     Under  no  circumstances  should  experts  knowingly 
name  prices  in  competition  with  each  other. 

6.  On  Selection  of  Bidders  or  Contractors. — The  ar- 
chitect should  advise  the  client  in  the  selection  of  bidders 
and  in  the  award  of  the  contract.     In  advising  that  none 
but  trustworthy  bidders  be  invited  and  that  the  award  be 
made  only  to  contractors  who  are  reliable  and  competent, 
the  architect  protects  the  interests  of  his  client. 

7.  On   Duties   to   the   Contractor. — As   the   architect 
decides  whether  or  not  the  intent  of  his  plans  and  specifi- 
cations is  properly  carried  out,  he  should  take  special 
care  to  see  that  these  drawings  and  specifications  are  com- 
plete and  accurate,  and  he  should  never  call  upon  the  con- 
tractor to  make  good  oversights  or  errors  in  them  nor 
attempt  to  shirk  responsibility  by  indefinite  clauses  in  the 
contract  or  specifications. 

8.  On  Engaging  in  the  Building  Trades. — The  architect 


CIRCULAR  OF  ADVICE  A.  I.  A.  263 

should  not  directly  or  indirectly  engage  in  any  of  the 
building  trades.  If  he  has  any  financial  interest  in  any 
building  material  or  device,  he  should  not  specify  or  use 
it  without  the  knowledge  and  approval  of  his  client. 

p.  On  Accepting  Commissions  or  Favors. — The  archi- 
tect should  not  receive  any  commission  or  any  substantial 
service  from  a  contractor  or  from  any  interested  person 
other  than  his  client. 

10.  On  Encouraging  Good  Workmanship. — The  large 
powers  with  which  the  architect  is  invested  should  be  used 
with  judgment.     While  he  must  condemn  bad  work,  he 
should  commend  good  work.     Intelligent  initiative  on  the 
part  of  craftsmen  and  workmen  should  be  recognized  and 
encouraged  and  the  architect  should  make  evident  his 
appreciation  of  the  dignity  of  the  artisan's  function. 

11.  On  Offering  Services  Gratuitously. — The  seeking 
out  of  a  possible  client  and  the  offering  to  him  of  profes- 
sional services  on  approval  and  without  compensation, 
unless  warranted  by  personal  or  previous  business  rela- 
tions, tends  to  lower  the  dignity  and  standing  of  the  pro- 
fession and  is  to  be  condemned. 

12.  On  Advertising. — Advertising  tends  to  lower  the 
dignity  of  the  profession  and  is  therefore  condemned. 

/j.  On  Signing  Buildings  and  Use  of  Titles. — The  dis- 
play of  the  architect's  name  upon  a  building  under  con- 
struction is  condemned,  but  the  unobtrusive  signature  of 
buildings  after  completion  has  the  approval  of  the  Insti- 
tute. The  use  of  initials  designating  membership  in  the 
Institute  is  proper  in  connection  wth  any  professional 
service  and  is  to  be  encouraged  as  helping  to  make  known 
the  nature  of  the  honor  they  imply. 

14.  On  Competitions. — An  architect  should  not  take 
part  in  a  competition  as  a  competitor  or  juror  unless  the 
competition  is  to  be  conducted  according  to  the  best  prac- 
tice and  usage  of  the  profession,  as  evidenced  by  its 
having  received  the  approval  of  the  Institute,  nor  should 
he  continue  to  act  as  professional  adviser  after  it  has  been 


264        LAW  OF  ARCHITECTURE  AND  BUILDING 

determined  that  the  program  cannot  be  so  drawn  as  to 
receive  such  approval.  When  an  architect  has  been 
authorized  to  submit  sketches  for  a  given  project,  no  other 
architect  should  submit  sketches  for  it  until  the  owner 
has  taken  definite  action  on  the  first  sketches,  since,  as 
far  as  the  second  architect  is  concerned,  a  competition  is 
thus  established.  Except  as  an  authorized  competitor,  an 
architect  may  not  attempt  to  secure  work  for  which  a  com- 
petition has  been  instituted.  He  may  not  attempt  to  in- 
fluence the  award  in  a  competition  in  which  he  has  sub- 
mitted drawings.  He  may  not  accept  the  commission  to 
do  the  work  for  which  a  competition  has  been  instituted 
if  he  has  acted  in  an  advisory  capacity  either  in  drawing 
the  program  or  in  making  the  award. 

15.  On   Injuring    Others. — An    architect    should    not 
falsely  or  maliciously  injure,  directly  or  indirectly,  the 
professional  reputation,  prospects  or  business  of  a  fellow 
architect. 

16.  On  Undertaking  the  Work  of  Others. — An  archi- 
tect should  not  undertake  a  commission  while  the  claim 
for  compensation  or  damages  or  both,  of  an  architect 
previously  employed  and  whose  employment  has  been 
terminated  remains  unsatisfied,  unless  such  claim  has  been 
referred  to  arbitration  or  issue  has  been  joined  at  law ;  or 
unless  the  architect  previously  employed  neglects  to  press 
his  claim  legally;  nor  should  he  attempt  to  supplant  a 
fellow   architect   after  definite   steps   have  been   taken 
toward  his  employment. 

77.  On  Duties  to  Students  and  Draughtsmen. — The 
architect  should  advise  and  assist  those  who  intend  making 
architecture  their  career.  If  the  beginner  must  get  his 
training  solely  in  the  office  of  an  architect,  the  latter 
should  assist  him  to  the  best  of  his  ability  by  instruction 
and  advice.  An  architect  should  urge  his  draughtsmen 
to  avail  themselves  of  educational  opportunities.  He 
should,  as  far  as  practicable,  give  encouragement  to  all 
worthy  agencies  and  institutions  for  architectural  educa- 


CANONS  OF  ETHICS  205 

tion.  While  a  thorough  technical  preparation  is  essential 
for  the  practice  of  architecture,  architects  cannot  too 
strongly  insist  that  it  should  rest  upon  a  broad  founda- 
tion of  general  culture. 

18.  On  Duties  to  the  Public  and  to  Building  Authori- 
ties.— An  architect  should  be  mindful  of  the  public  wel- 
fare and  should  participate  in  those  movements  for  public 
betterment  in  which  his  special  training  and  experience 
qualify  him  to  act.     He  should  not,  even  under  his  client's 
instructions,  engage  in  or  encourage  any  practices  con- 
trary to  law  or  hostile  to  the  public  interest ;  for  as  he  is 
not  obliged  to  accept  a  given  piece  of  work,  he  cannot, 
by  urging  that  he  has  but  followed  his  client's  instruc- 
tions, escape  the  condemnation  attaching  to  his  acts.     An 
architect   should   support  all   public   officials   who  have 
charge  of  building  in  the  rightful  performance  of  their 
legal  duties.     He  should  carefully  comply  with  all  build- 
ing laws  and  regulations,  and  if  any  such  appear  to  him 
unwise   or   unfair,   he   should   endeavor   to   have  them 
altered. 

19.  On   Professional   Qualifications. — The  public   has 
the  right  to  expect  that  he  who  bears  the  title  of  architect 
has  the  knowledge  and  ability  needed   for  the  proper 
invention,    illustration   and   supervision   of   all   building 
operations  which  he  may  undertake.     Such  qualifications 
alone  justify  the  assumption  of  the  title  of  architect. 

THE   CANONS   OF   ETHICS 

The  following  Canons  are  adopted  by  the  American 
Institute  of  Architects  as  a  general  guide,  yet  the  enumera- 
tion of  particular  duties  should  not  be  construed  as  a 
denial  of  the  existence  of  others  equally  important  al- 
though not  specially  mentioned.  It  should  also  be  noted 
that  the  several  sections  indicate  offenses  of  greatly  vary- 
ing degrees  of  gravity. 

It  is  unprofessional  for  an  architect — 


266        LAW  OF  ARCHITECTURE  AND  BUILDING 

1.  To  engage  directly  or  indirectly  in  any  of  the  build- 
ing trades. 

2.  To  guarantee  an  estimate  or  contract  by  bond  or 
otherwise. 

3.  To  accept  any  commission  or  substantial  service 
from  a  contractor  or  from  any  interested  party  other  than 
the  owner. 

4.  To  advertise. 

5.  To  take  part  in  any  competition  which  has  not  re- 
ceived the  approval  of  the  Institute  or  to  continue  to  act 
as  professional  adviser  after  it  has  been  determined  that 
the  program  cannot  be  so  drawn  as  to  receive  such  ap- 
proval. 

6.  To  attempt  in  any  way,  except  as  a  duly  authorized 
competitor,  to  secure  work  for  which  a  competition  is  in 
progress. 

7.  To  attempt  to  influence,  either  directly  or  indirectly, 
the  award  of  a  competition  in  which  he  is  a  competitor. 

8.  To  accept  the  commission  to  do  the  work  for  which 
a  competition  has  been  instituted  if  he  has  acted  in  an 
advisory  capacity,  either  in  drawing  the  program  or  in 
making  the  award. 

9.  To  injure  falsely  or  maliciously,  directly  or  indi- 
rectly, the  professional  reputation,  prospects  or  business 
of  a  fellow  architect. 

10.  To  undertake  a  commission  while  the  claim  for 
compensation,  or  damages,  or  both,  of  an  architect  pre- 
viously employed  and  whose  employment  has  been  ter- 
minated remains  unsatisfied,  until  such  claim  has  been 
referred  to  arbitration  or  issue  has  been  joined  at  law,  or 
unless  the  architect  previously  employed  neglects  to  press 
his  claim  legally. 

11.  To  attempt  to  supplant  a   fellow  architect  after 
definite  steps  have  been  taken  toward  his  employment, 
e.  g.,  by  submitting  sketches   for  a  project  for  which 
another  architect  has  been  authorized  to  submit  sketches. 


CANONS  OF  ETHICS  267 

12.  To  compete  knowingly  with  a  fellow  architect  for 
employment  on  the  basis  of  professional  charges. 
Adopted  December  14-16,  1909. 
Revised  December  10-12,  1912. 


APPENDIX  E 

(Published   by   special   permission   and   courtesy  of  the  New   York  Chapter 
of  the  American  Institute  of  Architects.) 

SCHEDULE    OF    CHARGES    APPROVED    BY    THE    NEW    YORK    CHAPTER    OF 
THE  AMERICAN   INSTITUTE  OF  ARCHITECTS 

SUPPLEMENTARY     TO     THE     STATEMENT     OF    PROFESSIONAL 

PRACTICE   OF  ARCHITECTS   AND   SCHEDULE   OF   PROPER 

MINIMUM  CHARGES  OF  THE  AMERICAN  INSTITUTE 

OF   ARCHITECTS 

ADOPTED    DEC.     IS-I7,    I9O8. 

The  New  York  Chapter  of  the  American  Institute  of 
Architects  as  a  professional  body,  recognizing  that  the 
value  of  an  Architect's  services  varies  with  his  experience, 
ability,  and  the  locality  and  character  of  the  work  upon 
which  he  is  employed,  does  not  establish  a  rate  of  com- 
pensation binding  upon  its  members,  but  it  is  the  judg- 
ment of  the  New  York  Chapter  that  for  full  professional 
services  adequately  rendered,  an  architect  practicing  in 
the  City  of  New  York  should  receive  as  reasonable  re- 
muneration therefor  at  least  the  compensation  mentioned 
in  the  following  schedule  of  charges : 

i.  The  Architect's  professional  services  consist  of  the 
necessary  conferences,  the  preparation  of  prelimi- 
nary studies,  working  drawings,  specifications,  large 
scale  and  full  size  detail  drawings,  and  of  the  gen- 
eral direction  and  supervision  of  the  work,  for 
which,  except  as  hereinafter  mentioned,  the  mini- 
mum charge,  based  upon  the  total  cost  of  the  work 
complete,  as  established  by  the  American  Institute 

of  Architects,  1908,  is : 6  per  cent. 

268 


SCHEDULE  OF  CHARGES,  N.  Y.  CHAPTER  A.  I.  A.     269 

2.  Residential  Work: 

Private  dwellings  within  the  limits  of  the  City  of 
New  York, 

On  the  first  $50,000  of  cost  .  .  8  per  cent. 
On  the  balance  of  cost,  the  minimum  fee  of  . 

6  per  cent. 

Private  dwellings  outside  of  the  City  of  New  York, 
including  stables  and  other  dependencies. 

On  the  first  $50,000  of  cost  .  .  10  per  cent. 
On  the  balance  of  cost  ....  8  per  cent. 
The  graduated  commission  applies  only  to  the 
above  two  classes  of  residential  work. 

3.  Monumental,  decorative  and  landscape  work,  special 
interior  and  cabinet  work,   alterations  to  existing 
buildings. 

In  all  cases  whether  in  connection  with  Federal, 
Municipal,  or  other  work  .    10  per  cent. 

4.  Designs  for  fabrics,  furniture  and  fixtures,  lighting 
fixtures,  and  special  decorative  work  15  per  cent. 

5.  Articles  not  designed  by  the  architect  but  purchased 
under  his  direction 6  per  cent. 

6.  All  disbursements  for  travelling  expenses,  measure- 
ments, surveys,   fees  for  expert  advice  when  re- 
quested or  sanctioned  by  the  client,  and  the  cost  of  all 
prints,  to  be  paid  for  by  the  client. 

7.  All  of  the  above  charges  are  subject  to  increase  by 
special  arrangement,  where  the  cost  of  the  work  is 
small  or  the  conditions  unusually  difficult. 

8.  By  special  interiors  and  cabinet  work,  is  meant  that 
part  of   the   work  which   is   individual,   requiring 
special  study  and  drawings  for  each  room  or  each 
feature  thereof,   as   distinguished   from  the  work 
which  is  repetitious  and  which  can  be  executed  from 
typical  drawings  and  general  specifications. 

9.  The  supervision  of  an  architect  does  not  guarantee 
the  performance  of  the  contract  by  the  contractor, 


270        LAW  OF  ARCHITECTURE  AND  BUILDING 

or  insure  the  client  against  defective  work  there- 
under. 

10.  The  Schedule  of  the  American  Institute  of  Archi- 
tects, shall  govern  in  all  cases  not  covered  by  the 
foregoing  Schedule. 

F.  H.  HOLDEN,  Secretary, 
New  York  Chapter,  A.  I.  A. 
Adopted,  January  8th,  1910. 

Copyright   1910,  by  the  New  York  Chapter  of  the  American  Institute  of 
Architects 


FORMS 


FORMS 

(See  also  Appendix  B) 

As  stated  in  the  introduction,  it  has  seemed 
best  to  give,  in  addition  to  the  forms  included  in 
Appendix  B,  a  number  of  the  more  usual  and  im- 
portant forms  required  in  lien  proceedings.  The 
forms  here  given  deal  primarily  with  the  early 
steps,  preliminary  to  or  upon  the  institution  of  a 
lien  action.  For  other  forms  dealing  with  later 
proceedings,  or  forms  less  intimately  connected 
with  the  rights  of  the  architect,  owner  and  con- 
tractor, reference  may  be  made  to  any  standard 
form  books  or  special  text  books  on  lien  litigation. 
The  following  forms  are  selected  largely  from 
forms  used  in  actual  litigation.  They  should,  of 
course,  be  adapted  to  the  special  circumstances  of 
the  cases  in  which  use  may  be  made  of  them. 

NOTICE  OF  LIEN  (A)  AND 
COMPLAINT  (B) 

(in  action  to  foreclose  lien  where  work  has  been 
performed  at  request  of  lessee  of  a  portion  of 
premises  of  an  office  building,  apartment  house  or 
similar  structure,  and  where  architect  has  fur- 
nished special  materials,  in  addition  to  preparing 
plans  and  specifications. ) 

273 


274        LAW  OF  ARCHITECTURE  AND  BUILDING 

(A)  NOTICE  OF  LIEN 

To  the  Clerk  of  the  County  of  New  York,  State  of  New 

York:— 
TAKE  NOTICE,  that  I,  A . . . . ,  residing  in  the  City  of 

,     County  of  ,  and  State  of   ,  with 

offices  at  No ., Avenue,  Borough  of  Man- 
hattan, City,  County  and  State  of  New  York,  have  and 
claim  a  lien  for  the  principal  and  interest  of  the  value 
and  agreed  price  of  the  labor  and  materials  hereinafter 
mentioned,  upon  the  real  property  and  upon  the  im- 
provements hereinafter  mentioned,  pursuant  to  the  Lien 
Law  and  the  Acts  amendatory  thereof  and  supplemental 
thereto;  and  I  do  further  state  and  allege  as  follows,  to 
wit,  that 

I.  The  name  of  the  owner  of  the  real  property  against 

whose  interest  a  lien  is  claimed  is,  B Its  address 

and  principal  office  is  at  No Avenue,  in 

the  Borough  of  Manhattan,  City  and  State  of  New  York. 
A  lien  is  likewise  claimed  against  the  fee  of  said  property 

and  the  interest  therein,  if  any,  of  C. and  D , 

all  as  hereinafter  stated. 

II.  The  names  of  the  corporation  and  of  the  person 
by  which  and  by  whom  I  was  employed  and  to  which 
and  to  whom  I  furnished  the  labor  and  materials  are: 

C . . . .  and  D The  address  of  said  C . . . .   is  No. 

Avenue,  Borough  of  Manhattan,  City  and 

State  of  New  York,  and  the  address  of  said  D is, 

No Avenue,  Borough  of  Manhattan,  City 

and  State  of  New  York. 

III.  The  labor  performed,  materials  furnished  and  the 
agreed  prices  thereof  are  as  follows : 

Services  as  architect  in  the  superintendence  and  prep- 
aration of  plans  and  specifications,  the  preparation  and 
furnishing  of  designs  for  and  the  furnishing  and  instal- 
lation of  especially  designed  electric-lighting  fixtures  in 
connection  with,  and  the  superintendence  and  supervision 


FORMS  275 

as  architect  of,  certain  alterations  and 'improvements  in 
and  to  and  the  out-fitting  of  the  offices  occupied  and 
leased  by  C. . . .  and  situate  on  the  Sixth  floor  of  the 

building  known  as  No Avenue,  Borough 

of  Manhattan,  City  and  State  of  New  York,  the  fore- 
going including  the  supervision  by  me  and  the  superin- 
tendence by  me  as  architect  of  all  of  said  work,  the  mak- 
ing of  said  alterations,  the  designing  and  installation  of 
said  fixtures,  the  carrying  out  of  the  work  done  pursu- 
ant to  said  plans  and  specifications,  and  all  of  the  details 
of  the  work  above  referred  to. 

Said  services  were  performed  at  the  request  of  said 
C. ... .,  and  D. . . .,  and  for  said  services,  said  C. . . . 
and  said  D....  jointly  and  severally  expressly  cove- 
nanted and  agreed  to  make  payment  to  me  as  follows, 
viz.:  For  so  much  of  said  services  as  were  exclusive 
of  the  furnishing  of  the  said  lighting  fixtures  the  sum 
of  dollars ;  and  for  the  furnishing  and  installa- 
tion of  said  lighting  fixtures  and  the  superintendence 
thereof,  the  additional  sum  of  dollars. 

IV.  The  amount  unpaid  and  owing  to  me  for  said  la- 
bor and  materials  aforesaid  at  the  time  of  the  filing  of 

this  Notice  of  Lien  is  the  sum  of dollars.     Said 

labor  and  materials  were  and  are  reasonably  worth  and  of 
the  reasonable  value  of  the  said  sum  of dollars. 

V.  On  information  and  belief,  the  time  when  the 
first  item  of  work  was  performed  was  the  2oth  day  of  Sep- 
tember, 1913,  and  the  time  when  the  last  item  of  work  was 
performed  was  the  7th  day  of  November,  1913.     Ninety 
days  have  not  elapsed  since  the  last  item  of  said  work, 
for  which  this  lien  is  claimed,  was  performed.    The  work 
on  said  premises  is  entirely  performed  at  the  present  time. 

VI.  On  information  and  belief,  the  property  subject 
to  this  lien,  and  upon  which  I  claim  a  lien,  is  described 
as  follows,  viz: 

ALL  that  plot,  piece  or  parcel  of  land  in  the  City, 


276        LAW  OF  ARCHITECTURE  AND  BUILDING 

County  and  State  of  New  York,  with  the  buildings  and 
improvements  thereon  erected  and  situate,  bounded  and 
described  as  follows,  to  wit : 

(Insert  detailed  description  by  metes  and  bounds,  with 
diagram  if  practicable.) 

VII.  This    lien    is    claimed   upon    the    fee    of    said 
premises  and  upon  the  buildings  and  improvements  there- 
on erected,  situate,  or  made,  with  any  and  all  appur- 
tenances thereto  and  against  any  and  all  interest  and  es- 
tates of  said  B. . . .  and  C. . . .  and  D. . . .,  and  any  and 
all  of  them,  in  or  to  or  concerning  said  premises  and  the 
said  improvements  and  appurtenances. 

VIII.  Said  labor  was  performed  and  said  materials 
were  furnished  with  the  express  knowledge,  consent  and 
approval  of  said  B....,  the  owner  of  the  fee  of  said 
premises. 

IX.  All  the  labor  performed  and  materials  furnished 
herein  have  been  performed  and  furnished  in  the  manner 
and  for  the  purposes  herein  set  forth,  and  for  the  im- 
provement of  the  said  real  property. 

Dated,  New  York  City,  January  — ,  1914. 

A...., 
Lienor. 

STATE  OF  NEW  YORK     1 
COUNTY  OF  NEW  YORK  J 

A .  . . . ,  being  duly  sworn,  deposes  and  says :  that  he  is 
the  claimant  and  lienor  mentioned  in  the  foregoing  No- 
tice of  Lien;  that  he  has  read  said  Notice,  and  knows 
the  contents  thereof,  and  that  the  same  is  true  of  his 
own  knowledge,  except  as  to  the  matters  therein  stated 
to  be  alleged  upon  information  and  belief,  and  that  as. 
to  those  matters,  he  believes  it  to  be  true. 

Sworn  to  before  me,  this 

day  of  January,  1914. 

A 

(Signature,  title,  etc.,  of  notary.) 


FORMS  277 

(B)  COMPLAINT 
City  Court  of  the  City  of  New  York 
A., 


Plaintiff, 


— against — 


-COMPLAINT. 


B ,  C ,  D ,  and  E , 

Defendants. 

The  plaintiff  above  named  complaining  of  the  defend- 
ants above  named,  by ,  his  attorneys,  respectfully 

shows  to  the  Court  as  follows : 

FIRST  :  On  information  and  belief,  that  at  all  the  times 
hereinafter  mentioned  the  defendant  B . . . .  was  and 
still  is  a  corporation  organized  and  existing  under  and 
by  virtue  of  the  Laws  of  the  State  of  New  York,  and 
was  and  is  the  owner  of  the  following  real  property  situ- 
ate in  the  Borough  of  Manhattan,  City,  County  and  State 
of  New  York,  and  more  particularly  bounded  and  de- 
scribed as  follows,  to  wit : 

(Insert  detailed  description  of  property  by  metes  and 
bounds.) 

together  with  the  building  on  said  property  erected  and 
situate  and  known  as  No Avenue,  in  said  Bor- 
ough of  Manhattan,  City  of  New  York. 

On  information  and  belief,  that  at  all  the  times  here- 
inafter mentioned  the  defendant  C.  —  was  and  is  a  cor- 
poration organized  and  existing  under  and  by  virtue  of 

the  laws  of  the  State  of and  the  defendant  D . . . . 

was  and  is  an  officer,  to  wit :  the ,  of  the  said  de- 
fendant C 

SECOND  :     On  information  and  belief,  that  on  or  about 

the  loth  day  of  September,  1913,  the  defendant  B 

executed  and  delivered  a  lease  of  and  leased  a  portion 
of  the  Sixth  floor  of  the  said  building  erected  and  situate 
on  the  aforesaid  premises  and  owned  by  said  B. . .  .,  to 
the  defendant  C . . . . ,  and  said  defendant  C . . . . ,  there- 


278        LAW  OF  ARCHITECTURE  AND  BUILDING 

upon  entered  into  and  has  since  continued  in  possession 
of  said  leased  portion  of  said  premises  and  was  in  pos- 
session thereof  as  said  tenant  at  the  time  when  plaintiff 
was  employed  by  the  defendants  and  the  work,  labor, 
services  and  materials  herein  referred  to  were  performed 
and  furnished,  all  as  hereinafter  stated. 

THIRD:  That  on  or  about  and  between  the  2oth  day 
of  September,  1913,  and  the  7th  day  of  November,  1913, 
plaintiff,  at  the  special  instance  and  request  of  the  de- 
fendants, C and  D. . . .,  and  with  the  express  knowl- 
edge, consent  and  approval  of  the  owner,  the  defendant 
B ,  furnished  certain  labor  and  materials  in  and  con- 
cerning the  said  real  property  and  the  said  building 
thereon  erected  and  situate  as  aforesaid,  as  follows,  to 
wit: 

Performed  services  as  an  architect  in  the  superintend- 
ence and  preparation  of  plans  and  specifications,  the 
preparation  and  furnishing  of  designs  for  and  the  fur- 
nishing and  installation  of  especially  designed  electric- 
lighting  fixtures,  in  connection  with,  and  the  superintend- 
ence and  supervision  by  plaintiff  as  architect  of,  certain 
alterations  and  improvements  in  and  to,  and  the  out- 
fitting, in  accordance  with  said  plans,  specifications  and 
designs,  of  the  said  portion  of  said  building  and  premises 
leased  as  aforesaid  to  said  defendant  C. . . .,  by  said  de- 
fendant B . . . . ,  which  said  services  necessitated  and  in- 
cluded the  supervision  and  superintendence  by  plaintiff 
as  architect  of  all  of  said  work,  including  superintend- 
ence by  plaintiff  of  the  making  of  said  alterations  in 
accordance  with  said  plans  and  specifications,  of  the 
choice  and  installation  and  furnishing  of  said  fixtures,  and 
of  all  the  details  of  the  improvements  and  work  herein 
referred  to. 

FOURTH:  That  said  services,  labor  and  materials 
aforesaid  exclusive  of  the  designing  and  furnishing  and 
superintendence  of  the  installation  of  the  electric-light- 
ing fixtures  herein  referred  to,  were  reasonably  worth 


FORMS  279 

the  sum  of Dollars,  which  said  sum  the  defend- 
ants, B . . . .  and  C . . . . ,  duly  promised  and  agreed  to  pay 
to  plaintiff  therefor;  that  the  preparation  of  designs  for 
and  the  furnishing  and  installation  and  superintendence 
of  the  furnishing  and  installation  of  said  electric-light- 
ing fixtures,  and  the  said  fixtures  themselves,  were  reason- 
ably worth  the  additional  sum  of Dollars,  which 

said  sum  said  defendants,  B . . . .  and  C . . . . ,  duly 
promised  and  agreed  to  pay  plaintiff  therefor. 

FIFTH:  That  plaintiff  has  duly  performed  and  ful- 
filled all  the  work,  conditions  and  covenants  of  said  con- 
tract and  agreement  on  his  part  to  be  performed  but  that 

no  part  of  said  sum  of  Dollars  and  no  part  of 

said  sum  of Dollars  has  been  paid  and  that  the 

whole  of  each  of  said  sums  is  now  justly  due  and  owing 
from  the  defendants  to  plaintiff. 

SIXTH  :  That  the  labor  and  materials  performed  and 
furnished  and  herein  referred  to,  were  actually  used  in 
and  upon  and  for  the  improvement  of  the  said  property 
and  building  aforesaid  and  that  said  building  and  prop- 
erty have  been  enhanced  in  value  thereby. 

SEVENTH  :  That  on  the  day  of  January,  1914, 

and  within  ninety  days  after  the  completion  of  the  con- 
tract above  set  forth,  the  plaintiff  filed  a  notice  of  lien 
in  writing  in  the  clerk's  office  of  the  County  of  New 
York,  State  of  New  York,  the  County  in  which  the  prop- 
erty aforesaid  against  which  a  lien  is  asserted  is  situ- 
ated, on  and  against  the  said  real  property  for  the  aggre- 
gate amount  of  and  sum  due  to  plaintiff  for  said  labor 
and  materials  aforesaid,  to  wit :  the  sum  of Dol- 
lars; that  said  notice  of  lien  contained  the  name  of  the 
owner  of  said  real  property  against  whose  interest  the 
lien  was  claimed  and  the  nature  of  his  interest,  the  name 
of  the  person  and  corporation  by  whom  plaintiff  was 
employed  and  to  whom  and  to  which  he  furnished  the 
labor  and  materials  and  against  whose  interest  the  lien 
was  claimed,  the  labor  performed,  materials  furnished, 


2&>        LAW  OF  ARCHITECTURE  AND  BUILDING 

and  the  agreed  prices  thereof,  the  amount  unpaid,  the 
time  when  the  first  and  last  items  of  work  and  materials 
were  performed  and  furnished,  and  also  a  description  of 
the  property  to  be  charged  with  the  lien  in  all  ways  suffi- 
cient for  identification;  that  said  notice  of  lien  was  duly 
verified  and  complied  in  all  respects  with  the  require- 
ments of  the  statutes  in  such  case  made  and  provided, 

and  that  on  the day  of  January,  1914,  said  lien  was 

duly  entered  and  docketed  by  said  clerk  in  the  lien  docket 
kept  in  his  office;  that  a  copy  of  said  notice  of  lien  is 
hereto  annexed  and  marked  Exhibit  A  and  made  a  part 
of  this  complaint. 

EIGHTH  :  On  information  and  belief,  that  on  the 

day  of  January,  1914,  and  after  filing  his  notice  of  lien 
as  hereinbefore  set  forth,  plaintiff  caused  copies  of  said 
notice  to  be  and  the  same  were  duly  served  upon  the  de- 
fendant B . . . . ,  the  owner  of  said  building  and  property 
aforesaid,  and  the  defendants,  C....  and  D....,  re- 
spectively. 

NINTH  :  That  no  other  persons  have  filed  liens  against 
said  property  nor  have  subsequent  liens  or  claims  by 
judgment,  mortgage  or  conveyance,  except  the  defend- 
ant E . . . . ,  which  is  the  holder  of  a  mortgage  on  said 

premises  dated ,  and  due ,  for  the  sum  of 

Dollars. 

TENTH  :  That  no  other  action  or  proceeding  has  been 
brought  or  commenced  or  is  pending  at  law  or  otherwise 
upon  the  debt  hereinbefore  referred  to  or  to  enforce  any 
of  the  rights  and  obligations  hereinbefore  set  forth,  or 
to  recover  said  debt  or  any  part  thereof,  and  that  no  part 
of  said  debt  or  of  the  amount  herein  claimed  has  been 
paid  or  collected. 

WHEREFORE,  plaintiff  demands  judgment: 

i.  That  the  priority  of  all  liens  and  claims  on  said 
property  be  determined  and  the  rights  of  the  respective 
parties  hereto  be  duly  adjudicated. 


FORMS  281 

2.  That  he  be  adjudged  to  have  a  lien  on  said  property 
for  the  sum  of Dollars. 

3.  That  the  defendant  B . . . . ,  and  all  persons  claiming 
under  it  be  foreclosed  of  all  equity  of  redemption  or  other 
interest  in  said  premises. 

4.  That  the  interest  in  said  premises  of  the  defendants, 
B. . . .  and  C. . . .,  be  sold  as  provided  by  law  and  that 
from  the  proceeds  of  such  sale  the  plaintiff  be  paid  the 
amount  of  his  lien  as  aforesaid  and  interest  thereon  from 
the  7th  day  of  November,  1913,  together  with  the  costs  of 
sale  and  the  costs  of  this  action. 

5.  That  plaintiff  have  personal  judgment  against  the 

defendants,  B ,  C and  D. . . .,  and  each  of  them, 

in  the  sum  of    ......    Dollars,  together  with  interest 

thereon  from  said  November  7th,  1913,  and  for  any  de- 
ficiency that  may  remain  due  him  after  such  sale. 

6.  That  plaintiff  may  have  such  other  or  further  judg- 
ment, decree,  order  or  adjudication  as  may  be  necessary 
to  protect  his  rights  in  the  premises  or  as  may  to  the 
Court  seem  just  and  proper. 


Attorneys  for  Plaintiff, 

Office  and  Post  office  address, 
No.  2  Rector  Street, 
Borough  of  Manhattan, 
New  York  City. 


STATE  OF  NEW  YORK    1 

rSS 

COUNTY  OF  NEW  YORK] 

A ,  being  duly  sworn,  deposes  and  says: 

That  he  is  the  plaintiff  in  this  action ;  that  he  has  read 
the  foregoing  complaint  and  knows  the  contents  thereof 
and  that  the  same  is  true  of  his  own  knowledge,  except  as 
to  the  matters  therein  stated  to  be  alleged  upon  in  forma- 


282        LAW  OF  ARCHITECTURE  AND  BUILDING 

tion  and  belief  and  that  as  to  those  matters,  he  believes 

it  to  be  true. 

Sworn  to  before  me  this 

Day  of ,  1914. 

(Notary's  signature,  title,  etc.)  A 

(Exhibit  A.  annexed) 

NOTICE  OF  LIEN  (A)  AND 
COMPLAINT  (B) 

(where  work  performed  has  been  in  connection 
with  private  residence. ) 

(A)  NOTICE  OF  LIEN 

To  the  Clerk  of  the  County  of  Westchester,  State  of  New 

York:— 

TAKE  NOTICE,  that  I,  A. ... .,  residing  at  the  City  of 
,  County  of  .......  and  State  of ,  with  of- 
fices at  No Broadway,  in  the  Borough  of  Man- 
hattan, City  and  State  of  New  York,  have  and  claim  a 
lien  for  the  principal  and  interest  of  the  value  and  agreed 
price  of  the  labor  and  materials  hereinafter  mentioned 
and  the  disbursements  hereinafter  mentioned,  upon  the 
real  property  and  upon  the  improvements  hereinafter  men- 
tioned, pursuant  to  the  Lien  Law  and  the  Acts  amenda- 
tory thereof  and  supplemental  thereto,  and  I  do  further 
state  and  allege,  as  follows,  viz.:  that 

I.  The  name  of  the  owner  of  the  real  property  against 
whose  interest  a  lien  is  claimed,  is,  on  information  and 

belief,  B Her  address  is  No Street,  Yon- 

kers,  New  York.    A  lien  is  likewise  claimed  against  the 
fee  of  said  property,  and  the  interest  therein,  if  any,  of 
C . . . . ,  all  as  hereinafter  stated. 

II.  The  name  of  the  persons  by  whom  I  was  em- 
ployed and  to  whom  I  furnished  the  labor  and  materials 
are  B . . . . ,  and  C . . . . ,  the  husband  of  said  B The 


FORMS  283 

address  of  each  of  said  persons  is  No Street, 

Yonkers,  New  York. 

III.  The  labor  performed  and  materials  furnished  and 
the  agreed  price  thereof  are  as  follows,  to  wit : 

Architectural  services  in  the  matter  of  the  erection 
upon  the  premises  described  in  paragraph  VI  hereof  of  a 
residence  for  said  B .  . . .  and  C .  . .  . ,  consultations  re- 
garding, and  the  preparation  of  all  plans  and  specifica- 
tions therefor;  general  and  detailed  consultations  with 
said  B .  . .  .  and  C . . . .  in  regard  to  and  personal  and  de- 
tailed supervision  on  said  premises  of,  the  erection,  con- 
struction and  completion  of  said  residence  and  building 
thereon;  superintendence  of  all  construction  work,  and 
general  supervision  and  superintendence  of  all  work  in  the 
matter  of  the  erection  of  said  residence  in  accordance 
with  the  said  plans  and  specifications,  including  all 
changes,  alterations  and  additions. 

Said  services  were  performed  at  the  request  of  said 
B.  . .  .  and  C. . . .  and  upon  the  terms,  both  as  to  payment, 
agreed  price  and  charges,  which  are  set  forth  and  appear 
in  the  contract,  a  copy  of  which  is  hereto  annexed  and 
marked  Exhibit  I  and  made  a  part  hereof.  The  work 
on  said  premises  is  entirely  performed,  the  building  is 
completed  and  the  final  architect's  certificate  has  been  is- 
sued. In  addition  to  the  labor  performed  as  aforesaid, 
necessary  disbursements  have  been  paid  out  by  me  in 
connection  with  said  labor  and  services,  in  the  amount 
of  $ 

IV.  The  amount  unpaid  and  owing  to  me  for  such 
labor  aforesaid  is  $ at  the  time  of  filing  this  no- 
tice, and  for  such  disbursements  aforesaid  $ ,  all 

as  more   fully  appears   from  the  statement  of  account 
hereto  annexed  and  marked  Exhibit  II.     Such  labor  was 
and  is  reasonably  worth  and  of  the  reasonable  value  of 
said  sum  of  $ 

V.  On  information  and  belief,  the  time  when  the  first 
item  of  work  was  performed  was  the    day  of 


284        LAW  OF  ARCHITECTURE  AND  BUILDING 

August,   1909.     The  time  when  the  last  item  of  work 

was    performed    was    the    day   of    May,    1911. 

Ninety  days  have  not  elapsed,  dating  from  the  last  item 
of  work  performed,  for  which  this  lien  is  claimed. 

VI.  On  information  and  belief,  the  property  subject 
to  this  lien  and  upon  which  I  claim  a  lien,  is  more  partic- 
ularly bounded  and  described  as  follows,  to  wit : — 

(Take  in  detailed  description  of  property  by  metes  and 
bounds  with  diagram  if  practicable.) 

VII.  This  lien  is  claimed  upon  the  fee  of  said  prem- 
ises and  upon  all  the  improvements  and  buildings  thereon 
made  or  erected,  together  with  any  and  all  appurtenances 
thereto,  and  against  any  and  all  interest  of  said  B .  . .  . 
and  C.  . .  .  and  either  and  both  of  them,  in  and  to  and 
concerning  said  premises  and  the  said  improvements  and 
appurtenances.     Said  labor  and  services  were  performed 
and  materials  furnished,  as  hereinbefore  stated,  at  the 
request  of  said  B.  . . .  and  C.  . . .  and  with  their  knowl- 
edge and  consent,  and  under  and  pursuant  to  the  said 
express  contract  and  agreement  between  the  undersigned 
lienor  and  said  B.  . .  .   and  C.  . .  .,  a  copy  of  which  is 
hereto  annexed  and  marked  Exhibit  I,  and  made  a  part 
hereof  as  aforesaid. 

VIII.  All  the  labor  for  which  this  lien  is  claimed 
has  been  actually  furnished,  completed  and  performed, 
and  all  said  labor  was  performed  in  the  manner  and  for 
the  purposes  herein  set  forth  and  for  the  improvement 
of  the  said   real  property   hereinbefore   described,   and 
the  undersigned  lienor  has  performed  and  complied  with 
each  and  all  of  the  covenants  and  conditions  by  him  to 
be  performed  and  complied  with  under  the  terms  of  said 
contract. 

Dated,  New  York,  N.  Y.,  May  — ,  1911. 

A 

Lienor. 


FORMS  285 

STATE  OF  NEW  YORK 
COUNTY  OF  NEW  YORK 

A .  . . . ,  being  duly  sworn,  says  that  he  is  the  claimant 
and  lienor  mentioned  in  the  foregoing  notice  of  lien; 
that  he  has  read  said  notice  and  knows  the  contents 
thereof ;  and  that  the  same  is  true  of  his  own  knowledge, 
except  as  to  the  matters  therein  stated  to  be  alleged  upon 
information  and  belief,  and  that  as  to  those  matters  he 
believes  it  to  be  true. 
Sworn  to  before  me,  this 

day  of  May,  1911. 

A 

(Notary's  signature,  title,  etc.) 

(Annex  Exhibit.) 


(B)  COMPLAINT 

New  York  Supreme  Court,  County  of  Westchester 

A , 

Plaintiff, 


— against — 

B ,  C and  D , 

Defendants. 


^COMPLAINT. 


The  plaintiff  above  named,  for  his  complaint  in  the 

above  entitled  action,  by  ,  his  attorneys,  alleges 

and  respectfully  shows  to  the  Court: 

FIRST:  On  information  and  belief:  that  at  all  the 
times  hereinafter  mentioned,  the  defendant  B . . . .  was 
and  still  is  the  owner  of  the  following  real  property,  sit- 
uate in  the  City  of  Yonkers,  in  the  County  of  Westches- 
ter and  State  of  New  York,  and  more  particularly 
bounded  and  described  as  follows,  to  wit: — 

(Insert  detailed  description  by  metes  and  bounds.) 

SECOND:     On   information   and   belief,   that   the   de- 


286        LAW  OF  ARCHITECTURE  AND  BUILDING 

fendant  C is  the  husband  of  said  defendant  B. . . ., 

and  that  the  defendant  D. . . .  is  the  holder  of  a  mechan- 
ic's lien  against  the  above  mentioned  premises  and  the  in- 
terest therein  of  said  B . . .  .  which  lien  is  in  the  amount 
and  of  the  character  specified  in  the  paragraph  hereof 
designated  Seventh  and  that  said  D . . . .  is  made  a  party 
hereto  accordingly. 

THIRD:  That  on  or  about  the  ist  day  of  August, 
1909,  plaintiff  and  the  defendants,  B....  and  C...., 
above  named,  duly  made  and  entered  into  a  contract  and 
agreement  in  writing,  a  copy  of  which  is  hereto  annexed 
and  marked  Exhibit  A  and  made  a  part  hereof,  wherein 
and  whereby  the  said  defendants,  B . . . .  and  C . . . . ,  duly 
agreed  to  employ,  and  did  employ,  plaintiff  as  architect 
to  consult  with  them  regarding  and  to  prepare  and  revise 
sketches  and  specifications  and  plans  and  drawings  for 
and  personally  to  superintend  and  supervise  the  erec- 
tion of  a  residence  and  building  to  be  erected  by  said 
two  defendants  in  accordance  with  and  pursuant  to  said 
plans  and  specifications  upon  the  said  above  described 
premises,  and  that  in  and  by  said  agreement  and  con- 
tract it  was  mutually  covenanted  and  agreed  between 
plaintiff  and  said  defendants,  B . . . .  and  C .  . . . ,  that  in 
consideration  of  the  premises  and  of  the  plaintiff's  agree- 
ing to  undertake  and  perform  and  undertaking  and  per- 
forming said  work  and  preparing  and  furnishing  said 
plans  and  sketches  and  drawings  and  supervising  and 
superintending  the  erection  of  said  residence  and  build- 
ing, said  defendants,  B . . . .  and  C . . . . ,  would  pay  and 
they  agreed  to  pay  to  plaintiff  for  his  said  services,  and 
would,  and  did  agree  to,  reimburse  him  for  the  disburse- 
ments and  expenses  incurred  by  him  and  his  employees 
and  representatives,  the  sums  and  in  the  manner  and 
upon  the  terms  and  in  the  amounts  more  specifically  set 
forth  and  appearing  in  said  contract  hereto  annexed 
and  made  a  part  of  this  complaint  and  marked  Exhibit 
A,  as  aforesaid ;  that  in  and  by  said  contract  and  agree- 


FORMS  287 

ment  it  was  further  and  specially  mutually  covenanted 

and  agreed  between  plaintiff  and  said  defendants,  B 

and  C . . . . ,  that  plaintiff  should  receive  from  and  be  paid 

by  the  said  defendants,  B . . . .  and  C ,  and  said  two 

defendants  did  duly  promise  and  covenant  and  agree  to 
pay  plaintiff,  for  his  said  services  and  plans  and  speci- 
fications and  drawings,  in  the  manner  and  upon  the 
terms  and  conditions  as  to  time  of  payment  set  forth  in 
said  contract,  that  is  to  say,  one-fifth  (%)  of  plaintiff's 
total  commissions  upon  the  completion  of  the  sketches 
for  said  residence,  two-fifths  (%)  thereof  upon  the  com- 
pletion of  the  working  drawings  and  specifications,  and 
the  balance  thereof  from  time  to  time  as  the  work  should 
progress,  and  in  any  event,  and  not  later  than  forthwith 
upon  the  completion  of  said  building,  an  amount  equal  to 
six  (6%)  per  centum  of  the  amount  of  the  contract 
price  and  authorized  extras  for  the  erection  of  said 
residence  and  building  on  said  premises  above  described, 
together  with  all  reasonable  and  proper  reimbursement 
for,  and  the  reasonable  value  of,  all  extra  work  done 
on  the  said  drawings  and  plans  and  specifications,  to- 
gether with  the  amount  of  plaintiff's  traveling  expenses 
and  the  traveling  expenses  of  his  representatives  and 
employees. 

FOURTH:  That  plaintiff  did  and  has  duly  performed 
for  said  defendants,  B. . . .  and  C. . . .,  all  the  work  and 
duly  furnished  all  the  materials  provided  for  in  said 
contract,  and  that  said  work  was  performed  and  said 
materials  were  furnished  for  and  actually  used  in  the 
improvement  of  the  said  real  property  and  premises 
hereinbefore  described  and  the  erection  of  said  residence 
and  building  thereon  and  that  said  property  and  building 
have  been  enhanced  in  value  thereby;  that  plaintiff  has 
duly  fulfilled  and  performed  all  of  the  conditions,  cov- 
enants and  agreements  of  said  contract  and  agreement 
on  his  part  to  be  performed  and  in  the  manner  and 
within  the  time  therein  provided  and  specified,  and  that 


288        LAW  OF  ARCHITECTURE  AND  BUILDING 

the  last  item  of  work  was  performed  and  said  residence 
and  building  and  work  completed  on  the    ......    day 

of  May,  1911;  that  said  contract  price  and  authorized 
extras  for  the  erection  of  said  residence  and  building 

amounted    to    the    sum    of    $ ;    that    six    (6%) 

per  centum  thereof  amounts  to  the  sum  of  $ ;  that 

extra  work  was  necessarily  performed  by  plaintiff  on 
.said  drawings  and  specifications  and  plans  and  in  super- 
intending the  construction  of  said  building  and  at  the  spe- 
cial instance  and  request  of  said  defendants,  B .  . .  .  and 
C .  . .  . ,  of  the  reasonable  value  and  which  was  and  is 
reasonably  worth  the  sum  of  $ ;  that  said  neces- 
sary traveling  expenses  of  plaintiff  and  his  employees 

and  representatives  amounted  to  the  sum  of  $ ; 

making  an   aggregate  total   amount  of  $ which 

amount  became  due  and  owing  to  plaintiff  from  said  de- 
fendants, B. . . .  and  C.  . . .,  prior  to  the  commencement 
of  this  action,  pursuant  to  the  provisions  of  said  con- 
tract and  agreement  between  them ;  that  no  part  of  said 
sum  has  been  paid,  though  payment  thereof  was  hereto- 
fore and  before  the  commencement  of  this  action  duly 

demanded,  except  the  sum  of  $ and  that  heretofore 

and  prior  to  the  commencement  of  this  action,  the  balance 

of  said  sum  of  $ ,  to  wit,  the  sum  of  $ 

became  and  now  is  justly  due  and  owing  from  said 
defendants,  B . . .  .  and  C . . . . ,  to  the  plaintiff  under  and 
pursuant  to  the  terms  of  said  contract  and  agreement. 

FIFTH:     That  on  the  day  of  May,  1911,  and 

within  ninety  days  after  the  completion  of  the  said  con- 
tract and  work  above  set  forth,  and  within  ninety  days 
after  the  completion  of  said  residence  and  building  and 
the  last  item  of  work  thereon,  plaintiff  duly  filed  a  notice 
of  lien  in  writing  in  the  Clerk's  office  of  the  County  of 
Westchester,  State  of  New  York,  in  which  county  the 
property  aforesaid  and  above  described  and  against 
which  the  lien  was  asserted,  is  situate,  on  and  against  said 


FORMS  289 

real  property  and  the  building  and  improvements  thereon 
and  the  interests  and  estates  of  said  defendants,  B . . . . 
and  C . . .  . ,  in  and  to  said  property  and  said  building  and 
improvements,  for  the  said  unpaid  balance  and  amount  of 
the  labor  and  materials  and  expenses  aforesaid,  to  wit,  the 

said  sum  of  $ ;  that  said  notice  of  lien  contained  the 

name  of  the  owner  of  said  real  property,  to  wit,  said 

B .  . .  . ,  against  whose  interest  and  the  interest  of  said 

C.  . .  .,  if  any,  the  lien  was  and  is  claimed,  and  the  nature 
of  her  interest  and  the  nature  of  the  interest  of  said  C.  . .  . 
and  the  name  of  the  person  and  persons  by  whom  plain- 
tiff was  employed  and  to  whom  he  furnished  the  said  labor 
and  materials ;  the  labor  performed  and  the  agreed  price 
thereof ;  the  amount  unpaid ;  the  time  when  the  first  and 
last  items  of  work  were  performed  and  furnished,  and 
also  a  description  of  the  property  to  be  charged  with  the 
lien  in  all  ways  sufficient  for  identification ;  that  said  no- 
tice of  lien  was  duly  verified  and,  on  information  and 
belief,   complied  in  all   respects   with  the  requirements 
of  the  statute  in  such  case  made  and  provided,  and  was 

on  the day  of  May,  1911,  duly  filed  and  entered 

and  docketed  by  said  Clerk  of  said  County  of  Westches- 
ter  in  the  lien  docket  kept  in  his  office;  that  a  copy  of 
said  notice  of  lien  is  hereto  annexed  and  marked  Ex- 
hibit B,  and  made  a  part  of  this  complaint. 

SIXTH  :  On  information  and  belief,  that  on  the  said 

day  of  May,  1911,  and  after  the  filing  of  his  said 

notice  of  lien  as  hereinbefore  set  forth,  the  plaintiff 
caused  a  copy  of  said  notice  to  be  and  the  same  was 
duly  served  personally  upon  B . . . .  the  owner  of  said 
premises,  and  one  of  the  defendants  herein,  as  aforesaid, 
and  also  caused  a  copy  of  said  notice  to  be  and  the  same 
was  duly  served  personally  upon  the  defendant  C . . . . , 
the  husband  of  said  B . . .  . ,  in  manner  as  is  by  statute 
provided. 

SEVENTH  :     On  information  and  belief,  that  there  are 


no  other  subsequent  liens  or  claims  by  judgment,  mort- 
gage or  conveyance  outstanding  against  said  property, 
except  as  follows,  viz. : 

A  mechanic's  lien,  filed  by  the  defendant 
D . . . . ,  the  contractor  by  whom  said  residence 
was  erected,  against  said  B . . . .  and  said  prem- 
ises and  the  interest  and  estate  of  said  B . . . . 

therein  for  $ ,  filed   1911, 

in  the  office  of  the  Clerk  of  the  County  of  West- 
chester,  State  of  New  York. 

EIGHTH  :  That  no  other  action  or  proceeding  has 
been  brought  or  commenced  or  is  pending  at  law  or 
otherwise  upon  the  debt  hereinbefore  referred  to  or  to 
enforce  any  of  the  rights  and  obligations  hereinbefore 
set  forth,  or  to  recover  said  debt  or  any  part  thereof,  and 
that  no  part  of  said  debt  or  of  the  amount  herein  claimed 
has  been  paid  or  collected. 

NINTH  :  That  plaintiff  has  duly  performed  and  com- 
plied with  each  and  all  of  the  provisions  of  said  contract 
and  agreement  on  his  part  to  be  performed  and  com- 
plied with. 

WHEREFORE,  plaintiff  demands  judgment: 

1.  That  he  be  adjudged  to  have  a  lien  on  said  prop- 
erty for  the  sum  of  $. . . ... .. 

2.  That  the  defendants,  B . . . .  and  C . . . . ,  and  each 
and  both  of  them,  and  all  persons  claiming  under  them, 
be  foreclosed  of  all  equity  of  redemption  or  other  inter- 
est in  said  premises. 

3.  That   the   said  premises  and   the   interest  in   said 
premises  of  said  B.  . .  .   and  C. . .  .  and  each  and  both 
of  them,  be  sold  as  provided  by  law,  and  that  from  the 
proceeds  of  said  sale  the  plaintiff  be  paid  the  amount  of 
his  lien  aforesaid  and  legal  interest  thereon,  together  with 
the  expenses  of  said  sale  and  the  costs  and  disbursements 
of  this  action. 

4.  That  plaintiff  have  personal  judgment  against  the 


FORMS  291 

defendants,  B....   and  C ,  in  the  sum  of  $ 

with  legal  interest,  and  for  any  deficiency  that  may  re- 
main due  him  after  such  sale. 

5.  That  the  priority  of  any  and  all  claims  by  lien  judg- 
ment, mortgage,  or  conveyance,  or  otherwise,  outstanding 
against  said  property,  may  be  determined  and  plaintiff 
decreed  to  have  a  prior  lien  on  said  property,  and  that 
plaintiff  may  have  such  further  judgment,  decree  or  or- 
der as  may  be  necessary  to  protect  his  rights  in  the  prem- 
ises, and  such  other  and  further  relief  as  to  the  Court 
may  seem  just  and  proper. 


Attorneys  for  Plaintiff, 
Office  and  post  office  address, 
No.  2  Rector  Street, 
Borough  of   Manhattan, 
New  York  City. 

STATE  OF  NEW  YORK     | 
COUNTY  OF  NEW  YORK,] 

A. ...  being  duly  sworn,  deposes  and  says:  that  he  is 
the  plaintiff  named  in  the  foregoing  complaint;  that  he 
has  read  said  complaint  and  knows  the  contents  thereof, 
and  that  the  same  is  true  of  his  own  knowledge,  except  as 
to  the  matters  therein  stated  to  be  alleged  upon  infor- 
mation and  belief,  and  that  as  to  those  matters  he  believes 
it  to  be  true. 
Sworn  to  before  me  this 

day  of  June,  1911. 

A 

(Notary's  signature,  title,  etc.) 

(Exhibits  Annexed.) 


PRIVATE    PROPERTY. 


292        LAW  OF  ARCHITECTURE  AND  BUILDING 

LIS  PENDENS— PRIVATE  PROPERTY 

New  York  Supreme  Court,  County  of  Westchester 

A...., 

Plaintiff, 

LIS    PENDENS. 

— against — 
B ,  C....   and  D...., 

Defendants. 

SIR: 

NOTICE  is  hereby  given  that  an  action  has  been  com- 
menced and  is  now  pending  in  the  above  named  Court 
by  the  above  named  plaintiff  against  the  above  named 
defendants,  the  object  of  which  action  is  to  foreclose 
a  mechanic's  lien,  notice  of  which  lien  was  on  the 

day  of  May,  1911,  duly  filed  in  the  office  of  the 

Clerk  of  the  County  of  Westchester,  State  of  New 
York;  and 

NOTICE  is  further  given  hereby  that  the  real  prop- 
erty affected  by  said  lien  is  more  particularly  bounded  and 
described  as  follows,  to  wit: — 

(Take  in  detailed  description  by  metes  and  bounds 
and  lot,  Block  and  street  numbers.) 

Dated,  New  York  City,  August   ,  1911. 


Attorneys  for  Plaintiff, 

Office  and  post  office  address, 
No.  2  Rector  Street, 
Borough   of    Manhattan, 
New  York  City. 

To   the  County  Clerk  of  the  County  of   Westchester, 

State  of  New  York. 
SIR: 

You  are  hereby  directed  and  requested  to  index  the 
foregoing  notice  in  and  against  the  names  of  the  follow- 


FORMS  293 

ing  defendants  in  the  above  entitled  action,  that  is  to  say, 
against  the  names  of  the  defendants,  B .  . . .  and  C 


Attorneys  for  Plaintiff, 

Office  and  post  office  address, 
2  Rector  Street, 

Borough     of     Manhattan, 
New  York  City. 

NOTICE  TO  OWNER  OF  CLAIM 
(Under  New  Jersey  Practice) 

To  RICHARD  ROE: — 

You  ARE  HEREBY  NOTIFIED  by  the  undersigned,  that 
A.  B.,  the  contractor  with  whom  you  have  contracted 
for  the  erection  of  the  building  and  dwelling  hereinafter 
referred  to,  is  justly  indebted  to  me,  the  undersigned,  in 

the  sum  of    Dollars,  for  work  done  and  labor 

performed  by  me  at  his  request,  in  erecting  and  con- 
structing, and  for  materials  furnished  by  me  at  his  re- 
quest and  used  in  the  erection  and  construction  of,  the 
certain  three-story  stone  and  frame  residence  and  dwell- 
ing house  owned  by  you,  situate,  lying  and  being  at  the 

Northeast  corner  of  Street  and Avenue, 

in  the  City  of   ,  County  of   and  State  of 

New  Jersey,  and  situate  and  erected  upon  the  property 
.it  said  location,  which  is  more  particularly  bounded  and 
described  as  follows,  to  wit:  (take  in  description  of  prop- 
erty, preferably  by  metes  and  bounds),  which  said  resi- 
dence and  dwelling  house  is  mentioned  and  referred  to 
and  described  in  a  certain  contract  in  writing  heretofore 
made  and  entered  into  between  you  and  said  A.  B.  and 

heretofore,  and  on  or  about  the day  of   , 

1914,  filed  in  the  office  of  the  Clerk  of  said  County  of 
State  of  New  Jersey,  and 

YOU  ARE  HEREBY  FURTHER  NOTIFIED,  that  I,  the  Under- 

signed  have  demanded  from  the  said  A.  B.  payment  of 


294        LAW  OF  ARCHITECTURE  AND  BUILDING 

the  said  sum  of Dollars  so  due  and  owing  to  me 

as  aforesaid  and  that  he,  the  said  A.  B.  has  failed  and 
refused  to  make  payment  of  the  same  or  any  part  thereof ; 
and 

I  DO  HEREBY,  THEREFORE,   NOTIFY  AND  REQUIRE  yOU  to 

retain  the  amount  of  money  so  due  to  and  claimed  by 
me  out  of  the  amount  owing  by,  or  due  from,  you  to  the 
said  A.  B.  and,  upon  your  being  satisfied  of  the  correct- 
ness of  my  demand,  to  pay  the  said  sum  of  

Dollars,  thereupon  and  forthwith,  to  me. 

Dated, New  Jersey,  July  ist,  1914. 

(Signed) 

JOHN  DOE. 


GENERAL  INDEX 

References  Are  to  Sections 

ACCEPTANCE 

of  commissions  by  architect,  4. 

of  plans,  as  affecting  architect's  compensation,  26,  27. 

and  delivery  distinguished,  27. 
ACTION 

for  neglect  against  architect — burden  of  proof,  44. 
by  contractor,  when  premature,  69. 
ADMISSION 

of  architects  to  practice,  3. 
AGENCY 

of  architect  (see  also  Architect,  Emergency,  Extras,  Super- 
intendence), 7-19,  46,  65-66. 
AGREEMENT 

between  architect  and  builder, — where  improper,  4. 
ALTERATION 

of  contract  terms, 
by  architect,  9-11. 

by  owner  as  affecting  architect's  agency,  13. 
AMERICAN 

Institute  of  Architects,   schedule  of,  as  proof  of  value  of 

services,  37. 
Institute  of  Architects — Standard  Documents  of    (see  also 

Appendix  B),  72. 
APPROVAL 

of  architect,  as  affecting  lien  of  subcontractor,  95. 
of  architect, — lien  action  as  affected  by  unreasonable  withhold- 
ing of,  95. 
of  City  Department  as  condition  precedent  to  maintenance  of 

mechanic's  lien,  96. 
of   architect, — unreasonable   withholding  of,   as   ground   for 

damages,  114. 
ARBITRATION 

provision  re  certificates  as  affected  by  covenant  for,  55, 
provision  as  affecting  provision  for  liquidated  damages,  70. 
agreements,  as  usurping  jurisdiction  of  courts,  72. 
ARBITRATOR 

architect  as,  49,  65,  66. 

power  of  architect  to  delegate  to  partner  authority  as,  14,  15. 
ARCHITECT 

relation  in  general  between  owner  and,  i. 
obligations  to  public  of,  I,  3,  39. 
right  of,  to  plead  privilege,  2. 
295 


296        LAW  OF  ARCHITECTURE  AND  BUILDING 

ARCHITECT-— continued  [References  Are  to  Sections.} 

disclosure  of  employer's  intentions  by,  2. 

liability  for,  2. 

confidential  and  trust  relations  of  owner  and,  i,  3,  14. 
good  faith  required  of,  3,  114. 
requirements  for  admission  of,  to  practice,  3. 
to  have  no  concealed  or  conflicting  interest  in  contract,  4. 
compensation  of,  as  affected  by  pecuniary  interest  in  con- 
tract, 4. 
agreements  between  builder  and,  4. 

effect  of,  4. 

acceptance  of  commissions  by,  4. 
loans  by  builder  to,  4. 
employment  by  contractor  of,  4. 

effect  of,  4. 

in  dual  capacity  of  architect  and  contractor,  4. 
assumption  of  good  faith  of,  6. 
agency  of,  importance  of,  7. 
express  and  implied  agency  of,  8. 
agency  of, — re  extras,  9,  54. 
as  general  agent  of  owner,  9,  10,  n,  54. 
agency  of,  as  limited  by  contract  terms,  9,  10,  II,  54. 
modification  or  change  of  contract  terms  by,  9-11. 
agency  of,  as  superintendent,  9-19,  46,  65-67. 

ratification  of  changes  by  owner  as  affecting,  13. 
limitations  on  general  agency  of,  n. 
power  of,  to  employ  or  substitute  new  contractor,  n. 
certificate  of,  to  comply  with  form  specified,  n. 
certificate  of,  as  affecting  right  of  builder  to  recover,  55. 
unreasonable  refusal  to  issue  certificate  by,  55,  114. 
giving  of  certificates  to  subcontractors  by,  n. 
right  of,  to  certify  extras  strictly  construed,  n. 
not  allowed  to  change  materials  or  construction,  n. 
authority  of,  to  supervise  letting  of  subcontracts,  n. 
authority  of,  to  employ  workmen,  n. 
right  of,  to  receive  notice  of  assignment  of  contract,  n. 
special  agency  of,  12. 

general  agency  of — as  enlarged  by  special  agency,  12. 
must  exercise  special  agency  with  care,  12. 
strict  construction  of  special  agency  of,  12. 
delegation  of  powers  in  general  by,  14. 
delegation  of  authority  as  arbitrator  to  partner  by,  15. 
delegation  of  authority  of,  by  consent,  15. 
care  required  in  delegation  of  authority  by,  16. 
power  of,  to  act  in  emergency,  17. 
dangers  of  implied  authority  of,  18. 

importance  of  caution  in  exercise  of  agency  authority  by,  19. 
precautionary  suggestions  re  agency  of,  19. 
important  to  understand  right  of,  to  compensation,  20. 
theories  of  recovery  of  compensation  by,  21. 


GENERAL  INDEX  297 

ARCHITECT— continued  [References  Are  to  Sections.} 

right  of,  to  recover  for  plans,  in  absence  of  special  agree- 
ment, 22. 
right  of,  to  compensation  for  plans,  as  affected  by  conditions 

specified,  22,  23. 
right  of,  to  compensation,  as  affected  by  conditions  re  cost  of 

building,  24-25. 
estimate  of  cost  by,  24,  25. 
compensation  of, 

as  dependent  upon  delivery  and  acceptance  of  plans,  26,  27. 

not  provable  by  custom  alone,  28,  29. 

as  dependent  on  actual  contract,  28,  29. 

in  competitions,  30. 

as  dependent  on  proof  of  care  and  skill,  31. 

as  affected  by  modification  of  contract,  32. 

as  affected  by  rescission  of  contract  by  owner,  33-36. 

for  preliminary  sketches,  33,  38. 

computation  of  value  of  services,  37. 

as  affected  by  variance  between  preliminary  sketches  and 

working  drawings,  38. 
charge  schedule  of  American  Institute  of  Architects,  as  proof 

of  value  of  services  of,  37. 
duties  of  owner  to,  38. 

general  suggestions  and  rules  re  compensation  of,  38. 
skill  required  of,  in  general,  39. 
compensation  of,  as  affected  by  defects  in  plans,  40. 
liability  of, 

for  defects  in  plans,  40. 

for  mistakes  and  negligence  re  plans,  41-45. 

for  defects  in  plans,  as  affected  by  compliance  with  plans, 

43,  44- 

for  expense  of  repairs,  45. 
for  improper  superintendence,  46. 
burden  of  proof  in  action  for  damages  for  defects  in  plans  and 

specifications,  44. 

care  required  of,  in  superintendence,  46. 
measure  of  care  and  diligence  in  superintendence  required 

of,  46. 

negligence  of,  a  question  of  fact,  47. 
burden  of  proof  in  action  to  recover  damages  for  negligence 

of,  48. 

as  arbitrator,  49,  65,  66. 

duties  to  owner  of,  in  issuance  of  certificates,  50. 
care  and  diligence  required  in  issuance  of  certificates  by,  50. 
death  of,  5.1. 

as  affecting  provision  requiring  certificate,  66. 
right  to  plans  as  between  owner  and,  52. 
right  to  plans  as  between  builder  and,  115. 
right  of  builder  to  compensation,  as  affected  by  estimates  of, 

54- 


298         LAW  OF  ARCHITECTURE  AND  BUILDING 

ARCHITECT— continued  {References  Are  to  Sections.] 

weight  given  to  testimony  and  opinion  of,  55. 
as  supervisor     (see  also  Architect  and  Superintendence),  66. 
lien  of,  80. 

as  affected  by  superintendence,  81-83. 
New  York  rule  re  lien  rights  of,  82,  84. 
Massachusetts  rule  re  lien  rights  of,  83,  84. 
effect  on  lien  action  of  unreasonable  withholding  of  certificate 

by,  95 
certificate  of,  as  condition  precedent  to  enforcement  of  lien, 

95- 
enforcement  of  lien,  as  affected  by  collusion  between  owner 

and,  97. 

rights  and  liabilities  in  general  of  builder  and,  114. 
duties  to  builder  of,  3,  114. 

summary  of  points  of  importance  to  builder,  owner  and,  116. 
ASSIGNMENT 

mechanic's  lien  as  affected  by  general,  104. 
ASSUMPTION 

of  good  faith  of  architect,  6. 
ATTACHING 

plans  and  specifications  to  contract,  62. 
AUTHORITY 
of  architect, 

dangers  of  implied,  18. 
as  superintendent,  9-19,  46,  65-67. 
to  receive  notice  of  assignment  of  contract,  n. 
BALANCE 

of  contract  price, — presumption  re,  upon  completion  by  owner, 

68. 
BREACH 

of  guarantee  as  affecting  right  of  contractor  to  recover,  55. 
BUILDER  (see  also  Contractor) 

good  faith  required  of  architect  toward,  3,  114. 

loans  to  architect  by,  4. 

agreements  between  architect  and,  4. 

right  to  compensation  for  extras,  of,  54. 

compensation  of,  54. 

effect  of  architect's  estimates  on  compensation  of,  54. 

chargeable  with  notice  of  contract  provisions,  54. 

recovery  of,  as  dependent  upon  approval  of,  and  issuance  of 

certificate  by,  architect,  55. 

recovery  by,  upon  completion  of  work  by  owner,  55. 
right  of,  to  plans, 

as  against  owner,  57. 
as  against  architect,  115. 
mutual  liabilities  of  owner  and,  56. 
completion  by  owner  upon  failure  of,  68. 
collusion  of  architect  and  owner  in  withholding  certificate  no 
bar  to  enforcement  of  lien  by,  97. 


GENERAL  INDEX  299 

BUILDER— continued  [References  Are  to  Sections.] 

suspension  of  work  by  mutual  consent,  as  affecting  recovery  of 
compensation  by,  69. 

when  action  by,  premature,  69. 

lien  rights  of,  89-105. 

right  of,  to  lien  dependent  on  performance,  91. 

substantial  performance  by,  as  supporting  lien,  92. 

effect  of  delay  upon  lien  of,  93,  94. 

lien  of,  as  affected  by  architect's  approval,  95. 

rights  and  liabilities  of  architect  and,  114. 

refusal  of  architect  to  issue  certificate  as  basis  for  action  for 
damages  by,  114. 

summary  of  points  of  importance  to  architect,  owner  and,  116. 
BUILDING  CONTRACT  (see  Contract). 
BURDEN 

of  proof  in  action  for  damages  for  defects  in  plans  and  specifi- 
cations, 44. 

of  proof  in  action  for  damages  for  negligence  or  want  of  skill 
of  architect,  48. 

of  proof  in  lien  action,  where  architect's  approval  is  with- 
held, 95. 
CARE 

required  in  delegation  of  authority  by  architect,  16. 

proof  of,  as  affecting  right  of  architect  to  recover,  31. 

degree  of,  required  of  architect  in  superintendence,  46. 
CERTAINTY 

required  in  contract,  62. 
CERTIFICATE 

of  architect  to  subcontractors,  n. 

of  architect  to  comply  with  form  specified,  n. 

duties  of  architect  to  owner  in  issuance  of,  50. 

care  required  in  issuance  by  architect  of,  50. 

of  architect,  importance  of,  55. 

unreasonable  refusal  of  architect  to  issue,  55. 

proof  of  waiver  of,  55. 

recovery  by  builder,  where  error  of  law  is  result  of  failure 
of  architect  to  give,  55, 

effect  of  final,  55. 

as  evidence  of  amount  due  from  owner  to  contractor,  55. 

as  affected  by  covenant  for  arbitration,  55. 

provisions  for,  enforcible  for  benefit  of  contractor,  as  well  as 
owner,  55. 
death  of  architect  as  affecting  provision  for,  66. 

issuance  by  architect  of, 

as  condition  precedent  to  recovery  by  contractor,  55. 
as  condition  precedent  to  maintenance  of  lien  action,  95. 
effect  of  collusion,  97. 
waiver  by  owner,  98. 

as  evidence  of  performance,  to  support  lien,  09. 

duties  of  architect  to  contractor  re  issuance  of,  114. 


300        LAW  OF  ARCHITECTURE  AND  BUILDING 

CERTIFICATION  [References  Are  to  Sections.] 

of  extras  by  architect  strictly  construed,  n. 
CHANGE 

of  contract  terms  by  architect,  9-11. 

in  specifications, — contract  provision  that  consent  of  architect 

is  necessary  to,  67. 

in  ownership,  as  affecting  mechanic's  lien,  102. 
CHANGES 

approved  by  owner,  as  affecting  architect's  agency,  13. 
CITY 

Department, — approval  of  as  condition  precedent  to  enforce- 
ment of  lien,  96. 
CLAIMS 

priority  of,  in  mechanic's  lien,  113. 
COLLUSION 

between  owner  and  contractor,  38. 

between  architect  and  owner,  in  withholding  certificate,  no 

bar  to  enforcement  of  lien,  97. 
COMMISSIONS 

acceptance  by  architect  of,  4. 
COMPENSATION 

of  architect  (see  also  Architect,  Mechanic's  Lien,  Plans,  Pre- 
liminary Sketches,  Recovery), 
as  affected  by  pecuniary  interest  in  contract,  4. 
theories  of  recovery  by  architect  of,  21. 
important  to  understand  right  of  architect  to,  20. 
right  of  architect  to,  in  absence  of  special  agreement,  22. 
as  dependent  upon  delivery  and  acceptance  of  plans,  26, 

27. 

not  sustained  by  proof  of  custom,  alone,  28,  29. 
for  plans  submitted  in  competitions,  30. 
as  dependent  on  proof  of  care  and  skill,  31. 
as  affected  by  modification  of  contract,  32. 
for  preliminary  sketches,  33,  38. 

as  affected  by  rescission  of  contract  by  owner,  33-36. 
computation  of  value  of  services,  37. 
schedule  of  charges  of  American  Institute  of  Architects, 

as  evidence  of  value  of  services,  37. 
as  affected  by  variance,  between  preliminary  sketches  and 

working  drawings,  38. 
general  suggestions  and  rules  re,  38. 
as  affected  by  defects  in  plans,  40. 

of  builder  (see  also  Builder,  Contractor,  Damages,  Mechanic's 
Lien,    Recovery). 

as  affected  by  modification  of  contract,  54. 
effect  of  estimates  by  architect  on,  54. 
occasioned  by  omission  or  act  of  owner,  54. 
as  dependent  upon  approval  of  and  issuance  of  certificate 
by  architect,  55. 


GENERAL  INDEX  301 

COMPETITIONS  [References  Are  to  Sections.} 

right  to  compensation  for  plans  submitted  in,  30. 
COMPLETE 

right  to  compel  owner  to,  35. 
COMPLETION 

of  contract  by  owner,  68. 

presumption  re  unpaid  balance  of  contract  price,  upon,  68. 
COMPLIANCE 

with  plans  as  affecting  right  of  action  against  architect  for 

defects,  44. 
COMPUTATION 

of  value  of  services  of  architect,  37. 
CONCEALED 

interest  of  architect  in  contract,  4. 
CONDITION 

precedent, — architect's  certificate  a,  to  maintenance  of  lien,  95. 

precedent,  delivery  and  acceptance  of  plans  as,  to  architect's 

right  to  recover,  26,  27. 
CONDITIONS 

of  contract — waiver  of,  15. 
CONFLICTING 

interest  of  architect  in  contract,  4. 
CONSENT 

suspension  of  work  by  mutual,  69. 

of  owner,  as  affecting  right  to  lien,  88,  105. 

delegation  of  authority  by  architect,  by,  15. 
CONSIDERATION 

necessity  of,  in  contract,  62. 
CONSPIRACY 

between  owner  and  contractor,  38. 

between  architect  and  owner,  97. 
CONSTITUTIONALITY 

of  mechanic's  lien  legislation,  76. 
CONSTRUCTION 

of  contract  provisions  re  extras,  n. 
CONSTRUCTION  CONTRACT  (see  Contract) 
CONTRACT 

modification  or  change  of,  by  architect,  9-11. 

provisions  for  extras,  in,  9-10,  67. 

validity  of  provisions  re  extras,  in,  67. 

waiver  by  parties  of  conditions  of,  15. 

modification  of,  as  affecting  compensation  of  architect,  32. 

rescission  of  by  owner  as  affecting  compensation  of  architect, 
33,34- 

right  to  compel  owner  to  complete,  35. 

measure  of  damages  on  refusal  of  owner  to  complete,  36. 

extension,  by  implication,  of  term  of,  54, 

effect  of  fraud  on,  56. 

general  requisites  of  construction,  62. 

necessity  of  consideration  for,  62. 


302        LAW  OF  ARCHITECTURE  AND  BUILDING 

CONTRACT— continued  [References  Are  to  Sections.) 

necessity  of  certainty  in,  62. 
necessity  of  written,  62. 
for  illegal  purpose,  62. 
embodied  in  various  instruments,  62. 

incorporation,  by  reference,  of  plans  and  specifications  in,  62. 
necessity  of  attaching  plans  and  specifications  to,  62. 
various  statutory  provisions  re,  63. 
distinction  between  void  and  illegal,  64. 
validity  of  provision  requiring  consent  of  architect  to  change 

in,  67. 

requirement  of  owner's  consent  for  sub-letting  of,  67. 
waiver  by  owner  of  terms  of,  67. 
provisions  re  liquidated  damages,  70. 
not  to  usurp  jurisdiction  of  courts,  71,  72. 
mechanic's  lien  as  dependent  upon,  79. 
lien  by,  86. 

provisions,  as  affecting  lien  rights  of  subcontractor,  no. 
effect  upon  lien  rights  of  filing  or  recording  of,  112. 
CONTRACTOR  (see  also  Builder) 

good  faith  required  of  architect  toward,  3,  114. 

loans  to  architect  by,  4. 

as  superintendent  of  his  own  work,  4. 

architect  acting  as,  4. 

employment  of  architect  by,  4. 

employment  or  substitution  by  architect  of  new,  n. 

compensation  of,  54. 

effect  of  architect's  estimates  on  compensation  of,  54. 

chargeable  with  notice  of  contract  provisions,  54. 

recovery  for  extras  by,  54,  67. 

recovery  by,  where  architect's  refusal  to  issue  certificate  is 

unreasonable,  55. 

certificate,  as  evidence  of  amount  due  from  owner  to,  55. 
breach  of  guarantee,  as  affecting  recovery  by,  55. 
certificate  provisions  enforcible  for  benefit  of,  55. 
right  of  owner  to  recover  damages  from,  56. 
obligations  of  owner  to,  56. 
obligations  to  owner  of,  56. 
right  of,  to  plans, 

as  against  owner,  57. 
as  against  architect,  115. 
liability  of,  for  work  of  subcontractor,  58. 
recoupment  from  subcontractor  by,  59. 
necessity  of  substantial  performance  by,  61. 
importance  of  provisions  re  extras,  to,  67. 
completion  by  owner  upon  failure  of,  68. 
suspension  of  work  by  mutual  consent,  as  affecting  recovery 

of  compensation  by,  69. 
when  action  by,  premature,  69. 
lien  rights  of,  89-105. 


GENERAL  INDEX  303 

CONTRACTOR— Continued  [References  Are  to  Sections.) 

right  of  to  lien  dependent  upon  performance,  91. 

substantial  performance  by,  as  supporting  lien,  92. 

effect  of  delay  upon  lien  of,  93,  94. 

lien  of,  as  affected  by  architect's  approval,  95. 

collusion  between  architect  and  owner  in  withholding  certifi- 
cate no  bar  to  enforcement  of  lien  by,  97. 

lien  of  subcontractor  as  affected  by  failure  of,  to  complete,  109. 

necessity,  and  effect  upon  lien  rights,  of  filing  or  recording 
contract  between  owner  and,  112. 

rights  and  liabilities  of  architect  and,  114. 

refusal  of  architect  to  issue  certificate  as  basis  for  action  for 
damages  by,  114. 

summary  of  points  of  importance  to  architect,  owner  and,  116. 
CORPORATIONS 

as  lienors,  100. 
COST 

of  building,  as  affecting  architect's  right  to  compensation,  24, 

25- 

estimation  by  architect  of,  24,  25. 
COURTS 

tendency  of,  in  enforcement  of  provision  re  extras,  67. 
CUSTOM 

as  affecting  right  of  architect  to  compensation,  28,  29. 
DAMAGES  (See  also  Architect,  Contractor,  Owner) 

measure  of,  on  refusal  of  owner  to  complete,  36. 

liquidated,  70. 

arbitration  provision  as  affecting  provision  for  liquidated,  70. 

right  of  builder  to,  for  refusal  of  architect  to  issue  certificate, 
114. 

for  defects  in  plans,  40. 

for  improper  workmanship,  56. 

burden  of  proof  in  negligence  action  against  architect  for,  48. 
DANGERS 

of  implied  authority  of  architect,  18. 
DEATH 

of  architect,  51. 

as  affecting  provision  requiring  certificate,  66. 

of  owner  as  affecting  mechanic's  lien,  103. 
DEFECTS 

in  plans, — liability  of  architect  for,  40. 
DEGREE 

of  care  and  diligence  required  of  architect  as  superintendent,  46. 
DELAY 

effect  of,  upon  lien  of  contractor,  93,  94. 

DELEGATA  POTESTAS  NON  POTEST  DELEGARE,  14,  15. 
DELEGATION 

of  authority  by  architect,  14,  15. 
by  consent,  15. 
due  care  required  in,  16. 


[References  Are  to  Sections.] 

DELAGATUS  NON  POTEST  DELEGARE,  14,  15. 
DELIVERY 

and  acceptance  of  plans  as  affecting  architect's  right  to  com- 
pensation, 26,  27. 

and  acceptance  distinguished,  27. 
DILIGENCE 

degree  of,  required  of  architect  in  superintendence,  46. 
DISCLOSURE 

of  employer's  intentions  by  architect,  2. 
DISTINCTION 

between  void  and  illegal  contracts,  64. 
DOCUMENTS 

the  "Standard  Documents"  of  the  American  Institute  of  Ar- 
chitects (see  also  Appendix  B),  72. 
DRAWINGS  (see  also  Compensation,  Preliminary  sketches). 

contract  provisions  requiring  consent  of  architect,  to  justify 

departure  from  specifications  or,  67. 
EMERGENCY 

powers  of  architect  in,  17. 

EMPLOYEES  of  subcontractor, — lien  rights  of,  in. 
EMPLOYMENT 

of  workmen  by  architect,  n. 
ERROR 

of  law, — recovery  by  builder  where  failure  to  give  certificate 

is  due  to,  55. 
ESTIMATES 

of  architect,  as  affecting  right  of  builder  to  compensation,  54. 
ESTIMATION 

of  building  cost  by  architect  as  affecting  liability  of  owner, 

24,  25. 
ESTOPPAL 

of  owner  from  claiming  architect's  acts  improper,  5. 

of  owner  from  claiming  exceeding  of  agency  powers  by  archi- 
tect, 13. 
EVIDENCE 

certificate  as  evidence  of  performance  in  general,  55. 

certificate  as  evidence  of  performance  to  support  lien,  99. 

schedule  of  charges  of  American  Institute  of  Architects,  as, 

37- 
EXCEEDING 

of  agency  powers  by  architect  (see  also  Architect),  when 

owner  estopped  from  claiming,  13. 
EXPRESS 

agency  of  architect,  8. 
EXTENSION 

of  contract  term  by  implication,  54. 
EXTRAS  (see  also  Architect,  Builder,  Contractor,  Owner) 

rights  and  liabilities  of  architect  re,  9,  54. 

right  of  architect  to  certificate  for,  strictly  construed,  1 1. 


GENERAL  INDEX  305 

EXTRAS — continued  [References  Are  to  Sections.} 

right  of  builder  to  recover  for,  54. 

occasioned  by  omission  or  act  of  owner,  54. 

importance  to  owner  and  contractor  of  contract  provisions  re, 
67. 

tendency  of  courts  in  enforcement  of  provisions  for,  67. 

order  for,  by  implication,  67. 

validity  of  provisions  in  contract  for,  67. 
FAILURE 

of  builder — completion  by  owner  upon,  68. 
FILING 

of  contract  and  specifications  as  affecting  lien  rights,  112. 
FINAL 

certificate — effect  of,  55. 
FIRE 

right  to  lien,  as  affected  by,  101. 
FIXTURES 

right  to  mechanic's  lien  for  lighting,  87. 
FORM 

specified — certificate  of  architect  to  comply  with,  II. 
FORMS     (See  Special  Index  to  Forms,  page  314). 
FRAUD 

effect  of,  on  contract,  56. 
GENERAL 

assignment,  as  affecting  mechanic's  lien,  104. 
GOOD  FAITH 

required  of  architect, 
toward  owner,  3. 
toward  builder,  3,  114. 

of  architect  assumed,  6. 
GUARANTEE 

right  of  contractor  to  recovery,  as  affected  by  breach  of,  55. 
HISTORY 

of  mechanic's  lien  legislation,  74,  75. 
ILLEGAL 

contract  for  purpose  which  is,  62. 

contract  as  distinguished  from  void  contract,  64. 
IMPLICATION 

extension  of  term  of  contract  by,  54. 
IMPLIED 

agency  of  architect,  8. 

authority  of  architect,  18. 

dangers  of,  18. 
IMPROPER 

agreement  between  architect  and  builder,  4. 

superintendence,  liability  of  architect  for,  46. 
INSTITUTE 

of  Architects, — American, — charge  schedule  of  as  proof  of 
value  of  services,  37. 


306        LAW  OF  ARCHITECTURE  AND  BUILDING 

INTEREST  [References  Are  to  Sections.] 

conflicting, — of  architect  in  contract,  4. 
ISSUANCE 

of  certificate, — duties  of  architect, 
to  owner  in,  50. 
to  builder  in,  114. 
JURISDICTION 
of  courts, 

contract  not  to  usurp,  71,  72. 
arbitration  agreements,  as  usurping,  72. 
LIABILITIES 

of  architect,  owner  and  contractor   (see  Architect,  Builder, 

Contractor,  Compensation,  Lien,  Owner,  Plans). 
LIEN  (see  Mechanic's  Lien) 
LIGHTING 

fixtures,  right  to  mechanic's  lien  for,  87. 
LIMITATION 

of  agency  of  architect,  10-19. 
LIQUIDATED 
damages,  70. 

legality  of  provision  for,  as  distinguished  from  penalty, 

70. 

arbitration  provision  as  affecting  provision  for,  70. 
LOANS 

by  builder  to  architect,  4. 
MAINTENANCE 

of  lien, — approval  by  City  Department  as  condition  precedent 

to,  96. 
MASSACHUSETTS 

right  of  architect  to  lien  in,  83,  84. 
MATERIAL-MEN 

of  subcontractor, — lien  rights  of,  III. 
MEASURE 

of  damages  on  refusal  of  owner  to  complete,  36. 

of  care  and  diligence  required  of  architect  in  superintendence, 

46. 
MECHANIC'S  LIEN 

as  dependent  on  state  statutes,  73,  85. 

definition  of,  73. 

history  of,  74,  75. 

constitutionality  of,  76. 

as  statutory  remedy,  77. 

imposes  no  personal  liability,  78. 

necessity  of  contract  to  enforcement  of,  79. 

of  architect,  in  general,  80,  81. 

importance  of  superintendence  in  establishment  of  architect's 

right  to,  81-83. 
of  architect  under  New  York  doctrine,  82,  84. 


GENERAL  INDEX  307 

MECHANICS  LIEN— continued  [References  Are  to  Sections.) 

of  architect  under  Massachusetts  doctrine,  83,  84. 

importance  of  statutory  provisions  in  consideration  of,  85. 

by  contract,  86. 

for  lighting  fixtures,  87. 

consent  of  owner,  as  affecting  right  to,  88. 

rights  of  contractor  in  general,  89-90. 
as  dependent  on  performance,  91. 
the  doctrine  of  substantial  performance,  92. 
as  affected  by  delay,  93,  94. 
as  dependent  on  architect's  approval,  95. 

certificate  of  architect  as  condition  precedent  to  enforcement 
of,  95- 

approval  of  City  Department  as  condition  precedent  to  en- 
forcement of,  96. 

enforcible  where  certificate  of  architect  withheld  through  col- 
lusion with  owner,  97. 

waiver  of  production  of  certificate  by  owner  as  affecting,  98. 

certificate  as  evidence  of  performance  to  support,  99. 

right  of  corporations  to  enforce,  100. 

effect  of  destruction  of  building  by  fire  on,  101. 

as  affected  by  change  in  ownership,  102. 

effect  of  death  of  owner  upon,  103. 

as  affected  by  general  assignment,  104. 

consent  of  owner  as  affecting  right  to,  105. 

of  subcontractor, 

nature  of,  106. 

Pennsylvania  doctrine  re,  107. 
New  York  doctrine  re,  108. 
subrogation,  108. 

failure  of  contractor  to  complete  as  affecting  right  of  sub- 
contractor to,  109. 

contract  provisions  as  affecting  rights  of  subcontractor  to, 
no. 

rights  of  employees  and  material-men  of  subcontractor  to, 
in. 

effect  of  filing  or  recording  contract  and  specifications  upon, 

112. 

necessity  of  filing  specifications  with  contract,  112. 

"Stop  Notice"  under  New  Jersey  practice,  112. 

priority  of  claims  in,  113. 
MISTAKES 

in  plans,  41-45. 
MODIFICATION 

of  contract  by  architect,  9-1 1. 

of  contract,  as  affecting  compensation  of  architect,  32. 
MUTUAL 

consent — suspension  of  work  by,  69. 


3o8        LAW  OF  ARCHITECTURE  AND  BUILDING 

NEGLIGENCE  [References  Are  to  Sections.* 

of  architect — a  question  of  fact,  47. 

or  lack  of  skill  of  architect — burden  of  proof  in  action  for,  48. 
NEW 

contractor,  employment  by  architect  of,  II. 
NEW  YORK 

right  of  architect  to  lien  in,  82,  84. 

doctrine  re  lien  of  subcontractor,  108. 
NOTICE 

of  assignment  of  contract — architect  without  authority  to  re- 
ceive, ii. 

builder  chargeable  with  notice  of  contract  provisions,  54. 

Stop,  under  New  Jersey  practice,  112. 
OBLIGATIONS 

of  architect,  owner,  and  contractor   (see  Architect,  Builder,. 
Contract,    Contractor,    Damages,    Mechanic's    Lien,. 
Owner,  Plans,  Preliminary  Sketches). 
OMISSION 

by  owner,  as  affecting  builder's  right  to  compensation  for 

extras,  54. 
OPINION 

of  architect — weight  of,  55. 
OWNER 

relation  in  general  between  architect  and,  I. 

estoppel  of,  from  claiming  architect's  acts  are  improper,  5. 

liability  of,  where  new  contractor  employed  by  architect,  II. 

not  bound  by  receipt  of  notice  of  assignment  of  contract  by- 
architect,  ii. 

estoppel  of,  from  claiming  exceeding  of  agency  powers  by 
architect,  13. 

alterations  or  changes  approved  by,  as  affecting  architect's, 
agency,  13. 

relations  of  architect  to,  based  on  trust  and  confidence,  1-3,  14. 

liability  to  architect  of,  for  plans,  in  absence  of  special  agree- 
ment, 22. 

as  affected  by  conditions  specified,  22,  23. 
as  affected  by  conditions  re  cost  of  building,  24,  25. 

estimate  of  cost  by  architect  as  affecting  liability  of,  24,  25. 

rescission  of  contract  by,  33-36. 

can  not  be  compelled  to  complete,  35. 

rights  of,  against  architect  for  neglect  and  mistake,  40-43. 

burden  of  proof  in  action  by,  against  architect  for  neglect,  44.. 

right  of,  to  damages  for  repairs,  45. 

right  of,  to  damages  for  improper  workmanship,  56. 

right  of,  to  plans,  as  against  architect,  52. 

right  of,  to  plans,  as  against  builder,  57. 

extras  occasioned  by  omission  or  act  of,  54. 

architect's  certificate,  as  affecting  right  of  builder  to  recover 
against,  55. 

waiver  of  issuance  of  architect's  certificate  by,  55. 


GENERAL  INDEX  309 

OWNER — continued  [References  Are  to  Sections.] 

liability  of,  where  refusal  to  issue  architect's  certificate  is  un- 
reasonable, 55. 

recovery  by  builder  on  completion  of  work  by,  55. 

certificate  as  evidence  of  amount  due  to  contractor  from,  55. 

certificate  provisions  enforcible  for  contractor  as  well  as,  55. 

liability  of  contractor  for  damages,  to,  56. 

obligations  to  contractor  of,  56. 

obligations  of  contractor  to,  56. 

importance  of  provisions  re  extras  to,  67. 

waiver  of  contract  terms  by,  67. 

completion  of  contract  by,  68. 

construction  by  courts  of  provision  for  completion  by,  68. 

presumption  re  unpaid  balance  of  contract  price  on  comple- 
tion by,  68. 

consent  of,  as  affecting  mechanic's  lien,  88,  105. 

production  of  certificate  in  lien  action  may  be  waived  by,  98. 

mechanic's  lien,  as  affected  by  death  of,  103. 

effect  on  lien  rights  of  filing  or  recording  contract  between 
contractor  and,  112. 

necessity  of  filing  specifications  with  contract  to  prevent  lien 
claim  against,  112. 

summary  of  points  of  importance  to  architect,  builder  and, 

116. 
OWNERSHIP 

change  of,  as  affecting  lien,  102. 
PARTNER 

delegation  of  authority  by  architect  to,  14,  15. 
PAYMENT 

time  of,  where  no  fixed  time  specified,  60. 

right  of  architect  to    (see  Architect,   Compensation,   Plans, 
Preliminary  Sketches). 

right  of  contractor  to   (see  Contractor,  Builder,  Compensa- 
tion). 
PECUNIARY 

interest  of  architect  in  contract, — effect  of,  4. 
PENALTY 

as  distinguished  from  liquidated  damages,  70. 
PENNSYLVANIA 

doctrine  re  lien  of  subcontractor,  107. 
PERFORMANCE 

as  affecting  right  of  contractor  to  lien,  91. 

doctrine  of  substantial,  92. 
PLANS 

right  of  architect  to  recover  for,  20-25. 

theories  of  recovery  by  architect  for,  21. 

right  of  architect  to  compensation  for,  as  affected  by  condi- 
tions re  cost,  24,  25. 

right  of  architect  to  compensation  for,  as  dependent  upon  de- 
livery and  acceptance,  26,  27. 


310        LAW  OF  ARCHITECTURE  AND  BUILDING 

PLANS — continued  [References  Are  to  Sections.] 

delivery  and  acceptance  of,  distinguished,  27. 
defects  in, 

as  affecting  compensation  of  architect,  40. 
liability  of  architect  for,  40. 
mistakes  and  negligence  re,  41-45. 

compliance  with,  as  condition  precedent  to  recovery  of  dam- 
ages from  architect  for  defects,  43,  44. 
right  of  owner  to, 

as  against  architect,  52. 
as  against  builder,  57. 
right  of  builder  to, 

as  against  owner,  57. 
as  against  architect,  115. 
right  of  architect  to, 

as  against  owner,  52. 
as  against  builder,  115. 

incorporation  of  plans  and  specifications  in  contract,  by  refer- 
ence, 62. 

where  must  be  attached  to  contract,  62. 
PRECAUTIONARY  SUGGESTIONS 
re  agency  of  architect,  19. 
re  compensation  of  architect,  38. 
in  general,  116. 
PRECEDENT 

certificate  of  architect,  as  condition  precedent  to  maintenance 

of  lien,  95. 
PRELIMINARY  SKETCHES 

right  to  compensation  for,  33,  38. 
variance  between  working  drawings  and,  38. 
PREMATURE 

action  by  contractor,  69. 
PRESUMPTION 

re  unpaid  balance  of  contract  price  on  completion  by  owner, 

68. 
PRIORITY 

of  lien  claims,  113. 
PRIVILEGE 

right  of  architect  to  plead,  2. 
PRODUCTION 

of  certificate, — necessity  of,  55. 
in  lien  action,  95. 
waiver  of,  98. 
PROOF 

of  skill  and  due  care  as  affecting  right  of  architect  to  recover, 

3i- 
PUBLIC 

duties  of  architect  to,  3. 
QUESTION 

of  fact — negligence  of  architect  a,  47. 


GENERAL  INDEX  311 

RECORDING  [References  Are  to  Sections.] 

of  contract  as  affecting  lien  rights,  112. 
RECOUPEMENT 

by  contractor  from  subcontractor,  59. 
RECOVERY 

of  compensation  by  architect, 
theory  of,  21. 

in  absence  of  special  agreement,  22. 
as  affected  by  special  conditions,  22-25. 
as  affected  by  proof  of  exercise  of  due  care,  31. 
by  builder,  where  failure  to  give  certificate  due  to  error  of  law, 

55- 

by  architect,  in  general   (see  Architect,  Compensation,  Me- 
chanic's Lien,  Plans,  Preliminary  Sketches). 
by  contractor,  and  subcontractor  in  general  (see  Contractor, 
Subcontractor,     Builder,     Compensation,     Damages, 
Mechanic's  Lien). 

by  owner,  in  general  (see  Owner,  Damages). 
REFERENCE 

incorporation   of    plans    and    specifications    in    contract   by, 

62. 
REFUSAL 

by  owner  to  complete, — measure  of  damages  on,  36. 
of  architect  to  issue  certificate, 

as  bar  to  recovery  by  contractor,  55. 
as  affecting  lien  of  contractor,  95. 
as  justifying  action  for  damages  by  contractor,  114. 
RELATIONS 

of  architect  and  owner  (see  Architect,  Owner). 
REPAIRS 

liability  of  architect  for  expense  of,  45. 

REQUIREMENTS 

for  admission  of  architects  to  practice,  3. 
REQUISITES 

general,  of  construction  contract,  62. 

RESCISSION 

of  contract  by  owner,  33-36. 
RIGHTS 

of  architect,  owner  and  contractor   (see  Architect,  Owner, 
Builder,       Contractor,       Compensation,       Damages, 
Mechanic's  Lien,  Plans). 
SERVICES 

of  architect — computation  of  value  of,  37. 

SKETCHES 

right  to  compensation  for  preliminary,  33,  38. 

variance  between  working  drawings  and  preliminary,  38. 
SKILL 

proof  of,  as  affecting  right  of  architect  to  recover,  31. 


312         LAW  OF  ARCHITECTURE  AND  BUILDING 

SPECIAL  AGENCY  [Reference*  Are  to  Sections.} 

of  architect,  12. 

to  be  carefully  exercised,  12. 
strictly  construed,  12. 

SPECIFICATIONS 

incorporation  of,  in  contract  by  reference,  62. 
must  be  attached  to  contract,  when,  62. 

contract  provision  that  consent  of  architect  necessary  to  au- 
thorize departure  from,  67. 
necessity  of  filing,  with  contract  to  protect  owner  from  lien, 

112. 

STANDARD  DOCUMENTS 

of  the  American  Institute  of  Architects  (see  also  Appendix 

B),  72. 
STATE 

statutes  re  contract,  63. 

statutes  re  liens,  importance  of,  85. 
STATUTORY 

provisions  re  contract,  63. 

provisions,  importance  of,  in  consideration  of  lien  rights,  85. 

"Stop  Notice"  under  New  Jersey  practice,  112. 
STRICT 

construction  of  right  to  architect's  certificate,  n. 

construction  of  agency  of  architect,  9-12,  54. 
SUBCONTRACTOR 

certificates  of  architect  to,  n. 

liability  of  contractor  for  work  of,  58. 

recoupement  by  contractor  from,  59. 

nature  of  lien  of,   106. 

Pennsylvania  doctrine  re  lien  of,  107. 
the  theory  of  direct  lien,  107. 

New  York  doctrine  re  lien  of,  108. 
the  theory  of  subrogation,  108. 

failure  of  contractor  to  complete  as  affecting  lien  rights  of, 
109. 

contract  provisions  as  affecting  lien  rights  of,  no. 

rights  of  employees  and  material-men  of,  in. 

recording  contract  as  affecting  lien  rights  of,  112. 

filing  or  recording  specifications  and  contract  as  affecting  lien 
rights  of,  112. 

remedy  of,  by  "Stop  Notice,"  112. 
SUB-LETTING 

of  contract,  as  dependent  upon  owner's  consent,  67. 
SUBROGATION 

lien  of  subcontractor  by,  108. 
SUBSTANTIAL 

performance,  necessity  of  proof  by  contractor  of,  61. 

performance, — what  constitutes,  61. 


GENERAL  INDEX  313 

SUBSTITUTION  [References  Are  to  Sections.) 

of  new  contractor  by   architect,   n 

SUGGESTIONS 

re  compensation  of  architect,  39. 

re  agency  of  architect,  19. 

in  general,  for  architect,  owner  and  builder,  116. 
SUMMARY 

of  special  matters  affecting  architect,  owner  and  contractor, 

116. 
SUPERINTENDENCE  (see  also  Architect,  Mechanic's  Lien) 

by  contractor  of  his  own  work,  4. 

by  architect,  in  general,  9,  19,  46,  65-66. 

care  and  diligence  required  of  architect  in,  46. 

liability  of  architect  for  improper,  46. 

importance  of,  in  enforcement  of  mechanic's  lien,  81-83. 
SUPERINTENDENT 

agency  of  architect  as,  9-19,  46,  65-67. 
SUPERVISION 

by  architect  of  letting  of  subcontract,  n. 
SUPERVISOR 

architect  as  (see  also  Architect,  Superintendence),  66. 
SUSPENSION 

of  work  by  mutual  consent,  69. 
TENDENCY 

of  courts  in  enforcing  provisions  for  extras,  67. 
TESTIMONY 

of  architect — weight  of,  55. 
TIME 

extension  of  term  of  contract  by  implication,  54. 

of  payment  where  no  fixed  time  specified,  60. 
UNPAID 

balance  of  contract  price, — presumption  re,  on  completion  by 

owner,  68. 
UNREASONABLE 

withholding  of  certificate  by  architect,  55. 

withholding  of  architect's  approval  in  lien  action,  95. 
USURPATION 

of  jurisdiction  of  courts  by  contract,  71,  72. 
VALIDITY 

of  contract  provisions, 
re  extras,  67. 
re  liquidated  damages,  70. 
VALUE 

of  architect's  services, 
computation  of,  37. 

schedule  of  American  Institute  of  Architects  as  proof  of, 
37- 


314         LAW  OF  ARCHITECTURE  AND  BUILDING 

VARIANCE  [References  Are  to  Sections.] 

between  preliminary  sketches  and  working  drawings,  38. 

effect  of,  38. 
VARIATION 

of  contract  terms  by  architect,  9-11. 
VOID 

contract  as  distinguished  from  illegal  contract,  64. 
WAIVER 

of  contract  conditions,  15,  67. 

by  owner  of  issuance  of  architect's  certificate,  55. 

of  certificate — proof  of,  55. 

by  owner  of  production  of  certificate  in  lien  action,  98. 
WITHHOLDING 

of  architect's  approval  in  general, —  effect  of,  55. 

in  lien  action,  95. 
WORK 

suspension  of,  by  mutual  consent,  69. 
WORKMEN 

supervision  by  architect  of  employment  of,  II. 
WRITTEN 

•  contract, — necessity  of,  62. 


INDEX  TO  FORMS 

[References  Are  to  Pages.} 

Complaints  in  lien  actions,  277,  285. 

Lis  pendens  private  property,  292. 

Notice  to  owner  of  claim  against  contractor,  293. 

Notices  of  lien  in  lien  actions,  273,  282. 

Standard  form  of,  acceptance  of  subcontractor's  proposal,  252. 

agreement  between  contractor  and  owner,  222. 

bond,  245. 

certificate  of  authority  to  execute  contract  or  bond,  251. 

contractor's  proposal,  with  alternative  clauses,  254. 

general  conditions  of  the  contract,  224. 

instructions  to  bidders,  253. 

invitation  to  submit  proposal  252. 

subcontract,  247. 


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